^M\ ■^*re '^fM Stifnta, ^em Havk or ...O^.vwAf.ua- m .ft*c\n Cod. Iur. Can., Can. 1015. " De Smet, op. cit., n. 91. " Oe Eefnrmationc Matr., sea. XXIV, cap. I. " Benedict XIV, De Synodo, VIII, XII, n. 5. 26 The New Church Law on Matrimony. by the new legislation. Therefore, a marriage con- tracted by two infidels is legitimate (valid), provided no diriment impediment of divine, natural, or positive law, or of civil law, interferes with its validity. Such a marriage is called legitimate before its consumma- tion; legitimate and consummated after the conjugal act whose nature is described below. 53. It will suffice to state here that consummation is always presumed unless the contrary is proved. Rati- fied marriages and legitimate marriages are considered consummated, if the conjugal act, whether voluntary or involuntary, Avas in itself sufficient for generation, irrespective of whether conception results from it or not ; in other words, si vir membro virili vas mulieris penetravit, et (rupto hymene, si adsit), semen in vagi- nam deposuit. This conclusion is drawn from the Causa Parisien. The Sacred Congregation of the "Council gave the following reply to a proposed doubt: "VI. Matrimonium censendum esse tantum ratum et nan consummatum, quoties hymen, qui vaginam claudit, sit intactus; quia ex integritate hymenis, vir- ginitas inviolata deducitur." ^° Formerly there was a controversy whether a mar- riage could be consummated by means of artificial fecundation, namely, by an onanistic or unnatural act which results in the effusion of semen virile, which semen would subsequently be transmitted in vaginam mulieris by means of a syringe. Some authors espoused the affirmative side and thus serious ground was afforded for controversy. The Sacred Congrega- tion of the Holy Office having been consulted whether a recourse to artificial fecundation could be had, re- sponded on March 24, 1897 : "Non licet." The answer, as is evident, brands such an act as illicit but it fails ^'Acta Sanctae Sedis, vol. XXVII, pp. 331-339. Preliminary Notions of Marriage. 27 to settle the question whether artificial fecundation could be instrumental in consummating a marriage. The new law, if we are not mistaken, settles the ques- tion when it says that only a coniugalis actus quo coniuges fiunt una caro can consummate marriage. Therefore the union of the two bodies by which is im- plied the effusio seminis virilis must result from the conjugal act itself, which is not the case when the semen virile causes fecundation by means of an arti- ficial contrivance, 54. The putative marriage is an invalid contract in which the pseudo-married parties are publicly reputed as husband and wife, and at least one of them believes they are lawfully wedded. As long as the good faith of at least one of the persons concerned perseveres, the putative marriage, according to a long established, canonical rule, has all the effects of lawful wedlock, one of which is the legitimacy of the offspring.'" 55. There are other kinds of marriage besides those already enumerated here. These are presumptive, clandestine, public, attempted, and morganatic mar- riages, and, finally, marriage of conscience. A fe^v words about each of these will suffice. 56. Presumptive marriage is not a marriage in the strict sense. It is a union whose existence the law pre- sumes with an incontrovertible, presumption [prae- sumptione iuris et de iure), on account of a circum- stance implying marital consent on the part of the man and the woman. Such a marriage used to arise, for instance, from free carnal intercourse between two betrothed persons, and also between two persons who through defect of age were not qualified to marry. Free carnal intercourse between them, after they reached the age of puberty, used to be interpreted as "" C. 13, X, qui filii sint legitimi, IV, 17. 28 The New Church Law on. Matrimony. ratifying and renewing the consent formally invalid on account of the impediment of age. The Tridentine decree and the decree "Ne tenter e" have abrogated this form of marriage. 57. Clandestine marriage, in the accepted sense of that term, is one contracted without the prescribed form of the Church. This form was the Tridentine form in the past. At the present time it is the form prescribed by the law of the new Code. It is called clandestine because it is entered into in secret, namely, without the presence of the parish priest and two wit- nesses. 58. Public marriage is one contracted publicly in conformity with the valid form of the Church. It pre- supposes the publication of the banns, or a dispensa- tion from them for a legitimate reason. 59. Attempted marriage is a form of invalid mar- riage. It is called attempted, because, though both contracting parties are aware of the diriment impedi- ment prohibiting their marriage, or of the lack of proper form, they go through the ceremony with a pretense of contracting marriage. 60. Morganatic marriage is a union contracted be- tween a man of royal birth and a woman not of his station of life, with the understanding that the wife and the future children will be satisfied with only a stipulated portion of the paternal inheritance. This inheritance involves the rank of the husband, his titles, dignity and offices, and his other ancestral possessions. Since the objective matter constituting this contract limits itself to mere civil effects, the Church not only accepts such a marriage but lends her aid to its solemnization. Such marriages originated in Austria and Germany, and are confined almost exclusively to those countries. Preliminary Notions of Marriage. 29 61. Marriage of conscience is a union contracted by means of the proper form, namely, in presence of the Ordinary or the parish priest and two witnesses. It is called marriage of conscience or secret, because secrecy is to be observed on the part of all those who witness it. The cause of this secrecy is the presump- tion that an exposure of the marriage would bring with it very grave injury and inconvenience to the con- tracting parties. It is precisely for this reason, and in order to keep the marriage from the public that the customary ante-nuptial proclamations are dispensed with.*' The new legislation makes a special provision in favor of such a marriage and declares that only a very grave and urgent reason can justify it."- The observance of its secrecy is imposed on the Ordinary and his successors as well as on the assisting priest and the two witnesses. Not even one of the contract- ing parties may divulge the secret without the consent of the other.*^ The obligation of secrecy ceases on the part of the Ordinary when a scandal or a grave injury desecrating the sanctity of the sacrament of matri-^ mony is feared from its observance. He is free to make the marriage public by way of punishment im- posed on the parties for the neglect of their duties. The new legislation states precisely the nature of this neglect. It consists in their failure to baptize their offspring, or to apprise the Ordinary of the child's true name, when they had him baptized under an as- sumed name. Apprising the Ordinary in this way is a duty with which they are expected to comply mthin thirty days after the baptism has taken place. A similar penalty may be imposed on them if they omit "'Const. Bened. XIV, "Satis Vobis," nov. 27, 1741, ^5; Bull. Bom. Cont., vol. I. '" "Nonisi ex gravissima et urgentissima causa . . . permitti potest ut matrimonium conscientiae ineatur." (Cod. Iub. Can., Can. 1104.) " Cod. Iur. Can., Can. 1106. 30 The New Church Law on Matrimony. the Christian education of the child born of such union/* 62. Exceptional circumstances which may justify the contracting of such a marriage may arise in the case of an army officer who is barred from marriage except on the supposition that his future wife com- mands a dowry whose minimum is stipulated by the civil law. The same may be said of persons who for reasons of conscience are united in marriage but liable to civil penalty if their marriage be made public. A royal person who after the death of his first wife wishes to marry again for reasons of conscience, may also be permitted to have recourse to such marriage, provided a sufficiently grave reason makes it impera- tive to keep the second marriage secret.*' 63. A. marriage thus contracted and the names of the children born of such union should not be inscribed in the usual matrimonial and baptismal registers. A special record of them should be kept in the secret archives of the Diocesan Curia.'° The law of the new Code insists that the Bishops should make provision for such a separate chest, whose exclusive purpose should be the preserving and keeping under lock and key of documents of this character. VI. The Jurisdiction of the Church over Marriage. (C^non 1016.) 64. All baptized persons belong to the jurisdiction of the Church. This principle finds its confirmation in the New Codex, in which the following canon is formulated : The marriage of baptized persons is regu- lated not only by divine but also by canon law, the " Cod. Iur. Can., Can. 1106. " Db Smkt., op. cit., n. 94. "Cod. Iuk. Can., Can. 379; see this work, n. 526 ff. Preliminary Notions of Marriage. 31 competence of the civil authority to the mere civil effects of such marriage being granted. This canon is the natural sequel of the teaching of the Church up- holding the sacramental character of all marriage con- tracts, whether the contracting parties profess Catho- licity or not, provided they are validly baptized. A sacred thing must be regulated by a society which is especially constituted and authorized for that purpose. 65. Though all canonists admit this extensive juris- diction of the Church, some (even of great renown) " have combated the opinion that the Church has actu- ally made use of this right and always intends to bind with canonical impediments even those baptized out- side the true fold. This canon settles the question once and for all. Thus has triumphed the more common opinion of the canonists of all ages, in which the modern are unanimous ; "' it was the only opinion con- sistent with the teaching of the Church. Hence no law, no custom can introduce an indiscriminate exemp- tion of heretics, schismatics, apostates or the excom- municated from canonical impediments.*" The numer- ous decisions of the Sacred Congregations plainly indicate that this has always been the practice of the Church. Therefore, unless an express exemption is given in favor of those who were not baptized in the Catholic Church, they are to be considered as bound by the canonical impediments. Their ignorance ex- cuses them from sin; it may also endow their mar- riage with a putative validity, but it fails to render it valid in case of a diriment ecclesiastical impediment. 66. Canon 1016 expressly admits the competence of the civil forum to the mere civil effects of marriage even when it is contracted by Christians. The civil " SCHMALZGRTJBEB, op. cit., p. I, tit. I, nn. 378 ff. " Cod. IVR. Can., Can. 87. "Weknz, op. cit., n. 66. 32 The New Church Law on Matrimony. authority has the right to regulate these effects by legislation conducive to the welfare of the contracting parties and the community at large. It may enforce this regulation even by the infliction of punishment, but it cannot assume the right of denying capriciously those civil effects, which naturally flow from the mar- riage contract, and to which the parties concerned hav^ a just claim, 67. Christians who validly and licitly contract mar- riage according to divine and canon law, should not, on the ground that they violated some civil law, be de- prived of the natural beneficial civil effects, for in- stance, the acknowledgment of the legitimacy of their union and of the child born in such a wedlock. If the state refuses to attribute such civil effects to a mar- riage contracted validly and licitly according to the law of the Church, unless certain conditions are ful- filled beforehand, such prohibition is not to be placed on equal footing with an impediment. If the condition prescribed by civil law can be complied with without sin, the welfare of the future child demands a submis- sion to it. But if, on the other hand, the spiritual welfare of the parties demands that they should get married, a condition specified by the civil law and vio- lating the freedom of conscience may be ignored."" 68. To deny to a marriage the natural civil effects which are inseparable from the essence of the con- tract, would be equivalent to inflicting very grave punishment. But, since the civil authority has no com- petence over the validity of the Christian marriage contracts, it transgresses the legitimate limits of its jurisdiction when it imposes a penalty which results in depriving Christians of the natural civil effects of their valid marriage. "" Feije, Be impedimentis et dispensationibus matrimonialib'us, nn. 71, 72: Lovanii, 1874. Preliminary Notions of Marriage. 33 69. The civil authority is within its rights in pre- scribing the civil registration of marriages validly contracted before the Church. Failure to comply with this regulation within the specified time can be a just cause for even a severe penalty. This penalty, how- ever, may not be so severe as to deprive the marriage contract of its validity for the time intervening be- tween its actual celebration and its registration," though to such an unreported and unregistered mar- riage may justly be denied some civil effects. Gasparri goes so far as to advance the opinion of an extremist, maintaining that a Christian who fails to have his valid marriage recorded in the civil register will justly be looked upon by the state as not being married, and consequently may be deprived of all the civil effects of the marriage.^^ •' Weenz, op. cit., n. 83. '" Gasparri, op. cit., n. 280. CHAPTER II. Espousals. (Canons 1017 and 1018.) I. Nature of the Espousals and Requirements for their Validity. 70. The new law modifies fundamentally the old dis- cipline concerning espousals. The following is the translation of the canon which treats of this subject. The espousals, or the promise of marriage, whether unilateral or bilateral, are invalid in both forums, un- less they were contracted in writing, signed by the parties and also by the parish priest or the Bishop of the place or by at least two witnesses. In case either party or both the parties know not how to write or are physically unable to write, for the validity it is re- quired that this fact be noted in the document and that an additional witness be selected who with the parish priest or with the Ordinary of the place or with the two witnesses of whom mention has been made, must sign the document. But the promise of marriage, thought it may be valid and no just cause may excuse one from its fulfillment, does not confer the right to a juridical action to compel the celebration of marriage ; the right to such action is admitted only for the pur- pose of recovering damages, if any are due.^ 71. This canon contains the latest development in the espousals, and in substance retains the form ' Cod. Iue. Can., Can. 1017. 34 Espousals. 35 hitherto prescribed by the decree "Ne temere" for a valid betrothment. A radical change has been intro- duced in the scope of the matrimonial promise. The decree "Ne temere" made no provision for a unilateral matrimonial promise; the new legislation places both the unilateral and the bilateral promise in the same category, prescribing the same requirements for both. 72. The parish priest is an authorized witness of the engagement. Ho takes the place of two witnesses in all engagements made within the precincts of his parish, but" outside its limits he constitutes only one witness. The same is to be said of a Bishop with re- gard to his diocese. 73. Concerning the signing of the document contain- ing the engagement, the words, vel neqiieat have been added to the texts of the decree "Ne temere." They have been placed after the words, scribere nesciat. Thus the present text makes a provision for any in- ability to sign one's name, whether it results from illiteracy, or from an accidental cause. In order that the document may be valid this inability must be dis- tinctly stated, and an additional witness shoiild testify to it by means of his signature. 74. It is a disputed question whether an engage- ment is valid, if made by persons who are laboring under impediments from which they cannot be freed without a dispensation. The more connnon opinion does not admit the validity of such engagements since it is presupposed that the parties make an illicit promise. Therefore, engaigements contracted by a Catholic and a non-Catholic without the dispensation from the impediment of mixed religion are generally considered invalid.^ Since the importance of the espousals has diminished considerably, it is of little ' S. Cong, de Prop. Fide, new Collect., n. 1696, 36 The Neiv Church Law on Matrimony. consequence to note that the reasonable, serious objec- tions of parents may invalidate them. 75, An engagement may be validly entered into even by proxy or procurator, provided there is a sufficient cause to justify a recourse to so extraordinary a meas- ure.' This custom, having been in vogue for many centuries, retains its force until it is expressly abro- gated. II. Obligation Arising from the Espousals. 76. In the past the betrothal carried with it a grave obligation to marry. This was imposed by commuta- tive justice on both contracting parties, if the contract was bilateral; and on one party, if it was imilateral. The marriage was to be contracted in due time, as specified by the contract, unless a legitimate cause excused its postponement. The obligation to enter into marriage could be forced even with censures and other ecclesiastical punishments," especially if such promise had been made under oath.^ 77, Even a juridical action could be instituted in the past before the ecclesiastical tribunal, if one of the contracting parties declined to abide by the promise made.* Of all these stringent measures only one has been retained, namely, the right to institute juridical proceedings to recover damages justly due.'' In this respect the Church has practically canonized the civil law, which permits the violation of the promise thus given. 78. The new discipline abrogates the right which in ' Terebres, Los Esponsales y el Matrimonio, n. 203 ; Madrid, 1909. * Gaspabri, op. cit., nn. 62 ff. " C. X, De SpcnsalibiiS et matrimoniis, IV, 1. • Dens, Tractatus de Sponsalibus et Matrimonio, n. 7, p. 18. ' Cod. Iur. Can., Can. 1017, §3. Espousals. 37 the past was generally attributed to the parties mak- ing an engagement, namely, ius ad rem (not in re) or the right to their respective bodies in matrimony. This abrogation favors the opinion of those who maintained that a sin committed by one of the contracting parties with a third person, does not contain an additional guilt (against justice) of such magnitude that a special mention must be made of it in the tribunal of penance. The absence of legal obligation on the part of the be- trothed to give their respective bodies to each other by means of matrimony, deprives the espousals of the force of an impedient impediment, if the parties wish to contract marriage with some one else. The espousals no longer possess the force of a diriment impediment of public honesty; hence one contracting party may freely enter into marriage with any blood-relative of the other. Even if an illicit intercourse has taken place between two espoused parties the impediment of affinity will no longer prevent them from marrying any of the blood-relatives of the other party. In the new legislation the impediment of affinity arises solely from a valid marriage, whether ratified or consummated,' and the impediment of public propriety from an invalid marriage, whether consummated or not, and from pub- lic or notorious concubinage." A more comprehensive treatment of these two impediments will be submitted later. 79. Formerly the obligation to marry the person with whom the engagement was made, was urged sub gravi on the ground of natural law." Such an obliga- tion is no longer imposed. The new legislation accepts the discipline of those civil codes which enforce the reparation of the damages suffered by the innocent » Cod. Iub. Can., Can. 97. » Op. cit., Can. 1078. '" Gasparri, op. cit., n. 62. 38 The New Church Law on Matrimony. party, but do not legally compel the fulfilling of the promise of marriage." From this it follows that a subsequent engagement is not invalidated on account of a former unbroken be- trothal. The new legislation does not attribute a superadded force to an engagement made firmer and more solemn by virtue of an oath taken. The person rescinding such an engagement without cause would sin against religion, but not against justice. The en- gagement dissolved through a just cause frees one even from the sin against religion, for ordinarily an oath is considered only as an accessory to espousals.'^ The same is to be said in case a betrothal confirmed by oath is broken by mutual consent. 80. Thus the whole ecclesiastical discipline concern- ing the espousals has been considerably simplified. The few principles here considered should be used as a guide in all other questions concerning the mutual consent and the violation of the given promise. The present canonical discipline disposes easily of the com- plicated cases of the past, even of those whose solution was rendered more difficult on account of some super- vening causes which, had they been foreknown, woxdd have deterred the grieved party from entering into an engagement. Nor should a difficulty arise in the solu- tion of the case in which one of the parties wishes to embrace a more perfect state, for no one would ques- tion the permissibility of breaking such contracts in the given or a similar instance, which presupposes the presence of a just cause. 81. We are not to infer that the pledge given in an engagement entails no responsibility whatsoever, and " A sample of such civil codes is the Italian Code in which we read': "La promessa scambievole di futuro matrimonio non produce obligazione legale di contrarlo, nfe di eseguire ci6 che si fosse convenuto pel easo di non adempiniento della medesima." '" Gaspasri, op. cit., n. 76. Espousals. 39 may be broken without any further consequences, at the whim and fancy of either contracting party. It is true that to the party injured is denied the right to a juridical process instituted before an ecclesiastical court in order to compel the offender to make good his promise. But it must be borne in mind that the same court upholds the right of the injured party to recover damages. This duty of reparation devolves on the party who rescinds the engagement without just cause. The presence of a just cause frees one from the obliga- tion of satisfying the other party for the damages sus- tained. Freedom from such obligation is limited to those damages which are the direct resultants of the promise. Any other injury directly caused through some other action must be repaired, though the legal obligation to marry is absent. Thus, for instance, dam- ages resulting from an illicit intercourse extorted by force or a promise of marriage and subsequent to a valid engagement, must be repaired by the guilty party, even if he had a cause justifying the dissolution of the engagement. In such hypothesis the offender should be urged with pressing importunity to protect the honor of the injured party by marrying her. If all efforts made by ecclesiastical authority in this direc- tion should fail, the innocent party should be advised to have recourse to the civil law in order to recover damages." It must be noted that the offender is bound in conscience to make some reparation. It is left to the discretion and prudent judgment of the confessor to determine in the internal forum the extent of the guilt and the consequent obligation. The culpability of the guilty party in such a case would be greater or less according as there was or was not a justifying cause for the breaking of the engagement. " ^ASPARRI^ op. cit., n. 113. 40 The Neiv Church Law on Matrimony. 82. The following canon (1018) admonishes the pas- tors to instruct their flock prudently in the sacrament of matrimony and in its impediments. The purpose of this canon is not to point out a new obligation imposed on the pastors by the Codex of Pius X. The encyclicals of Gregory XVI," Pius IX," Leo XIII," and the in- structions of the Holy Office " make use of strong lan- guage in order to bring the pastors to the realization of the same duty. The word prvdenter cannot be suf- ficiently emphasized in this connection. The instruc- tion of the pastor should be accommodated to the cir- cumstances, disposition and intellectual attainments of his hearers. His prudence will dictate what subjects should be touched extensively and what should be treated briefly; his discretion will aid him to decide what should be left unexplained. While he is expected to present a succinct, yet fairly thorough exposition of the new canonical discipline on matrimony, the instruc- tion on certain subject ought to be reserved for indi- vidual explanation when the parties bring to his notice their intention to marry. " "Summo iugiter," 27 maii 1832 ; litt. ap. "Quas vestro," 30 apr. 1841. " Ep. "Veriis exprimere," 15 aug. 1859. ""Jroanum," 10 febr. 1880. "Instr. (pro Vie. Ap. ad Gallas), 20 iun., 1866, ad 25; instr. (ad Archiep. Corcyren.), 3 ian. 1871, n. 7; instr. (ad Ep. S. Alberti), 9 dee. 1874, n. 1. CHAPTER III. Transactions Pkeceding the Celebration or Marriage. /. Examination of the Parties. (Canon 1019— Canon 1021.) 83. Before a marriage is celebrated it must be manifest that no obstacle is in the way of the valid and licit administration of the sacrament.^ This pre- supposes an investigation involving a shorter or longer period of time. In danger of death, if no other proofs are available, it suffices, unless there are indications to the contrary, that the contracting parties give a sworn statement testifying to their baptism and freedom from impediment.^ Such a statement made in periculo mortis serves instead of the preliminaries to mar- riage, as, for example, proclamation of banns, exami- nation of witnesses, etc. The purpose of this special provision is to facilitate the contracting of marriage under circumstances which do not permit the enforce- ment of the ecclesiastical discipline prescribed for non-urgent cases. Periculum mortis here must not be confounded with articulus mortis. A soldier about to wage war, or a person about to undergo a major op- eration is in periculo mortis, but not in articulo mortis, and this canon is applicable to their case. For articulus mortis, which is equivalent to urgens pericu- >COD. lUB. Can., Can. 1019, §1. 'Op. cit., Can. 1019, §2. 41 42 The New Church Law on Matrimony. lum mortis, a special provision is made in canon 1043.' 84. The ' ' contrary indications ' ' to which, this canon refers are circumstances calculated to show that the parties are either unbaptized or labor under an im- pediment. These indications must always have some probability in their favor. Thus, for instance, should both parties be well known in the locality in which the marriage is to take place, the fact of their blood-rela- tionship or of their affinity would in all probability come to the knowledge of the pastor. Should the indi- cations show that one of the parties is not baptized, after a short instruction baptism should be adminis- tered if the party so desires, and the pastor could proceed with the marriage. If, however, the infidel party declines to be baptized, or an impediment is de- tected from which the pastor has no power to dispense, he is not permitted to proceed any further until the necessary dispensation has been obtained. 85. The pastor to whom the law concedes the right to assist at the marriage, must investigate diligently at an opportune time before marriage whether there is an obstacle to its celebration. The nature of the investigation to be performed is clearly described in the new discipline. He should cautiously inquire from both the man and the woman, together and separately, whether they are laboring under an impediment and whether they, especially the woman, consent to the marriage freely. He should, furthermore, ascertain whether they are sufficiently instructed in Christian Doctrine. This latter precaution may be omitted only when their fitness in this regard is apparent. It de- volves on the Ordinary to prescribe uniform rules by which the pastors should be guided in the course of this investigation.* ' See this work, n. 151 ff. ' CpD. luji. Can.^ Can, lOgp, Preliminaries to Marriage. 43 86. According to the decree "Ne temere" the parochus who is authorized to assist at marriages is the pastor of the place where the marriage is to be contracted. The same holds good also as regards the making of these inquiries. The law obliges the pastor who is to witness the marriage to investigate diligently as to whether there is any impediment between the parties, interfering with the validity or licitness of the prospective contract.^ Formerly this duty de- volved on the pastor who was the parochus proprius of the parties by virtue of domicile or quasi-domicile. 87. The former discipline required also that each of the contracting parties should produce two wit- nesses (unless the same two were willing to testify in favor of both) whose duty it was to prove that the contracting parties were free to marry." The Codex states expressly that this discipline is still to be re- tained, but it is prescribed only for cases when there is a doubt in the mind of the pastor as to the absence of all impediments. A recourse to this mode of pro- cedure is the most practical way to settle such a doubt. Such witnesses should be known to the one who is authorized to take their deposition, and they should preferably be the father, mother, sister, brother, or other relatives by blood or by marriage, of the parties in question.^ 88. The "opportune time" to which this canon refers is any time preceding the publication of the banns. The tempus opporhmum ends at the moment the banns are first announced. " C. 3, X, de clandestina desponsatione, IV, 3 ; Benedictus XIV, cons. "FirnCandis," 6 nov. 1744, ^9; S. C. C, Somana et aliarum, 1 febr. 1908 ad XI; BiTUALE EOM., tit. VII, c. I, de Sacramento matrimonii, n. 1, 6. "Instr. S. C. Inq. ad Ep. orient., 29 aug. 1890, n. 1; Clement X, const. "Cum alias," 21 aug. 1670; Gasparri, op. cit., n. 126. ' Gasparri, op. cit., n. 129. 44 The New Church Law on Matrimony. 89. The obligation to make this prescribed investi- gation is a grave one, as is manifest from the words of the Lateran Council and of Benedict XIV.' Gas- parri thinks that it is incumbent on the pastor to make it even if he should have a moral certainty as to the absence of all impediments." While, on the one hand, such a moral certainty on the part of the pastor is generally a practical impossibility, it is hard to see, on the other hand, why the pastor should be obliged to enter into such inquiries if he knows beforehand that his investigation will not disclose anything militating against the contemplated marriage. 90. The pastor should not, without sufficient reason, delegate another to perform this task in his name. His inquiry should first be directed towards the public impediments, namely, ligamen, consanguinity, affinity, spiritual relationship, public honesty, etc. Then he ought to question separately and prudently, with great caution, both the prospective husband and the wife as to whether they consent freely to the marriage, and whether they are laboring under an occult impediment like that of vow, crime, etc. The parties are obliged sub gravi to reveal all impediments, even if these should incriminate them or redound to their dishonor.'" In case it is difficult or inadvisable to interview the bride separately, as it happens in some localities, the presence of an elderly woman, who is obliged to secrecy, may be tolerated. She should be a friend or a relative of the bride, but not her mother. 91. Needless to say that the man and the woman about to be married must both present themselves per- 'Wbrnz, op. cit., n. 130; Bangen, op. cit., II, §1. • Op. cit., n. 142. "Benedict XIV, const. "Nimiam licentiam," 23 maii, 1743, §10; Gasp ARM, op. pit., n. 140 ; Scavini, op. cit., Ill, n. 1038 ; Wernz, op. cit., n. 130. Preliminaries to Marriage. 45 sonally before the pastor. A local custom by virtue of which the prospective husband and the mother of the prospective wife betake themselves to the pastor for the purpose of submitting to the necessary inquiries, cannot be tolerated." 92. As regards instruction in Christian Doctrine it ought to be borne in mind that no person should be permitted to contract marriage unless he is sufficiently familiar with the rudiments of faith. He ought to be able to recite the "Our Father," "Hail Mary," "Apostles' Creed," "Commandments of God and of the Church, " " Acts of faith, hope, charity and contri- tion." He should, furthermore, be familiar with all those religious truths which are necessary necessitate medii." Ignorance of truths necessary necessitate praecepti does not bar one from marriage. In these matters the authors generally advise the pastor to show some indulgence and leniency towards persons whose mind is very unreceptive and unretentive. Such individuals should not be prevented from marrying as long as they have a fairly correct understanding of the leading truths of the Catholic Church." This principle may be safely followed in practice notwith- standing the stress the Codex of Pius X lays on the fact that the contracting parties must be sufficiently instructed. The possession of this necessary knowl- edge is not to be presumed; it must be tested." The pastor is dispensed from the obligation of question- ing the parties in Christian Doctrine only when the " Gaspabri, op. cit, n. 143. '2 Wernz, op. cit., n. 131. " De Becker., op. cit., p. 258 ; Benedict XIV, De synodo, lib. VIII, c. XIV, n. 3sq; De Smet, op. cit., n. 331; Gaspakbi, op. cit., n. 484.. '* C. 14, 17, 29, X, de spons. et matr. IV, 1 ; c. 3, X, de clandest. desponsatione, IV, 3; Benedict XIV, ep. eneye. "Etsi minime," 7 febr. 1742; S. C. S. Off. (Kentucky), 9 mail 1821; S. Poenit., 5 sept. 1899; EiTUALB EOMANUM, tit. VII, c. 1, de sacr. matr., n. 1, 10. 46 The New Church Law on Matrimony. character of the persons makes such an inquiry en- tirely unnecessary.'^ 93. On account of the delicacy of the matter which forms the subject of this inquiry the Codex advises the Ordinaries to compose a umfot-m formula which would serve as a guide for all the pastors of their re- spective dioceses.'" This ought to be committed to print, and it should contain in carefully chosen lan- guage the questions the pastor ought to ask on such occasions. 94. Unless the baptism was administered within the territorial limits of a pastor he must demand a baptismal certificate from both parties or only from the Catholic party if the marriage is to be contracted with a dispensation from the impediment of disparity of worship. Catholics who failed to receive the sacra- ment of Confirmation should receive it before they are permitted to enter into marriage. Nothing but a grave inconvenience can excuse them at that time from complying with this law.'^ 95. As regards the securing of the baptismal cer- tificate the new law makes no innovation. In the case of a mixed marriage, one must determine whether the impediment is simple mixed religion, or disparity of worship. In the first instance the pastor should de- mand the baptismal certificate of the Catholic party as well as that of the baptized non-Catholic party. In the second instance he should require a baptismal certificate from the Catholic party only.'^ The bap- tismal certificate of the non-Catholic party must be demanded in every ease, unless the pastor has per- sonal access to the register recording his baptism. If "•Cod. Iue. Can., Can. 1020, §2. "8. Poenit., 5 sept. 1899. " Cod. IDR. Can., Can. 1021. " S. C. de Sacramentis, instr. 6 mart. 1911, n. 1. Preliminaries to Marriage. 47 it is impossible to secure the baptismal certificate because the books Avere either lost or destroyed by fire, the testimony of a witness who is above all sus- picion {si nemini fiat praeiudicium) will suffice. If the party was baptized as an adult, his sworn state- ment testifying to his reception of the sacrament of Baptism will also be sufficient.'" If the doubt cannot be solved in any other way, the principle of presump- tion should be applied.'"' 96. It is important that the contracting parties should have benefited by the sacrament of Confirma- tion before they are permitted to administer to them- selves the sacrament of Matrimony. Insistence on this demand is in perfect accord with the discipline of the former legislation.-' The obligation to receive this sacrament rests with the parties; the determination whether the incommoditm is sufficiently grave or not, rests with the pastor. If it is urgent that the parties should be married; if they are poor and reside at a long distance from the seat of the diocese and the Bishop will not administer the sacrament of Confirma- tion in their locality for some time to come; if the Bishop is far from his diocese and they cannot wait until his return ; if the unconfirmed party is prevented by sickness from undertaking a journey to the episco- pal city in order to present himself before the Bishop for confirmation ; if some urgent circumstance hinders the unconfirmed party from leaving his home just at that time; these and many other reasons would cer- tainly constitute a grave incommodum for the parties. If in the estimation of the pastor the inconvenience to the parties is grave, he may proceed to marry them, '"Cod. Tur. Can., Can. 779. -»8ee this work, n. 238. ^' Cone. Ep. Sicil. (1880), and Cone. prov. Vienn. (1858) in Collect. Lac, t. VI, eol. 823, and t. V, col. 174. 48 The New Church Law on Matrimony. but must see to it that they receive the sacrament of Confirmation at the earliest opportunity. Should the incommodum not seem grave and the parties decline to comply with this law, the pastor cannot admit them to the sacrament of Matrimony unless he first consults the Ordinary. 77. Proclamation of Banns. (Canon 1022— Canon 1025.) 97. The announcement of the banns must be made publicly " by the proper pastor of the contracting par- ties.^^ If a party, after having reached the age of puberty, has resided elsewhere for six months the pas- tor should make this fact known to the Ordinary. To ascertain the free state of such an individual the Bishop may prescribe that proclamation of the banns be made at that place, or, should it be deemed prefer- able, may institute a juridical proceeding.^* If there should be some suspicion as regards the presence of an impediment, the pastor should consult the Ordinary, even if such party's stay outside the parish limits was of a shorter duration than six months. Under such circumstances the Bishop should not permit the mar- riage to take place until this suspicion is removed by means of the provision suggested above.^' 98. Though the pastor may have omitted nothing in the conscientious examination to which the contract- ing parties are to be subjected, such examination can- not preclude the possibility of the presence of an impedient or diriment impediment which the persons either knowingly withheld, or which, being unknown to " Cod. Ibe. Can., Can. 1022. » Op. cit., Can. 1023, Jl. " Op. cit., Can. 1023, §2. " Op. cit, Can, 1023, 53. Preliminaries to Marriage. 49 them, did not come to light. It was this possibility that induced De Soliaco, Bishop of Paris, to issue a decree in 1198, prescribing three public announcements of all future marriages.^" This local law was after- wards adopted by some provident Bishops as a matter of safeguard, and subsequently extended to the uni- versal Church by the Fourth Lateran Council pre- scribing one public proclamation of every marriage." It remained for the Council of Trent to cast this law in its final shape by amplifying it and expressing it more clearly.^* 99. Both the old and the new legislation insist that the proclamation of the banns must be made by the proper pastor of the contracting parties.^" He is obliged sub gravi to comply with this law even if he should have moral certainty as to the absence of all impediments.'" By the expression parochus proprius the law means the pastor one acquires by means of a domicile or quasi-domicile.'^ The parochus proprius of the vagi is that pastor in whose parish they tarry hie et nunc.^^ The same is to be said of those who acquired only a diocesan domicile or quasi-domicile.^' If both parties belong to the same parish without hav- ing acquired a domicile or quasi-domicile in another, the proclamation is to be restricted to this particular parish. If they belong to two distinct parishes, the "Benedict XIV, const. "Faucis abhinc," 19 mart. 1758; Weeinz, op. cit., n. 135; Gasparm, op. cit., n. 149. ^ Cone. Lat. in cap. Ill, De clamdest. desponaatione. " Cone. Trid., sess. XXIV, cap. I, De reform. matri/monU. "Benedict XIV, ep. encyol. "Satis Voiis," 17 nov. 1741; ep. encycl. "Faucis abUnc," 19 mart. 1758; S. C. S. Off., instr. (ad Ep. Orient.), 22 aug. 1890, u. 2; Rituale Bom., tit., VII, cap. I, de sacramento matrvm., n. 7, 8. '" Gasp ARM, op. cit., n. 142 ; Wernz, op. cit., n. 136 ; De Smet, op cit., n. 36. "Cod. Itje. Can., Can. 94, $1; S. C. de Saeramentis, Somana et aliarum, 13 mart. 1910, ad V, c. "Cod. Iue. Can., Can. 94, §2. •' Op. cit, Can. 94, J3. 50 The New Church Law on Matrimony. other condition remaining the same, the proclamation is to be made in both. If either or both contracting parties have several domiciles or quasi-domiciles, ac- cording to the letter of the law, proclamation should be made in all, for, in that case all those pastors are considered their parochi proprii. The banns of vagi should be announced in the parish in which they reside at the time. If the party gave up his domicile or quasi-domicile, and established a residence in the parish in which he wishes to contract marriage, then the second and the third paragraph of this canon find their application.^* Since the Codex fails to say that by means of one month's residence one acquires paro- chum proprium, the natural inference should be that though such a pastor, by virtue of a right expressly conceded to him, may marry people having such resi- dence, he is not supposed to announce their banns. 100. The male child attains the age of puberty as soon as he has completed his sixteenth year and the female child after the completion of her fourteenth year.'^ If after the attainment of the age of puberty either one or both contracting parties resided outside the parish for at least six months, the pastor who is to assist at the marriage must apprise the Ordinary of that fact. The Bishop, should he deem it necessary, may order the proclamation of the banns to be made at that place. Or, if instead of such proclamation he should prefer a juridical process, he is free to institute one. In that case he should examine at least two wit- nesses who were acquainted with the party in question in the place in which he spent six months. The duty of such witnesses will be to furnish proofs whereby the freedom of the party to marry is established. If "De Becker, op. cit, p. 234; Gaspakei, op. cit., n. 163; Wernz, op. cit., n. 139; De Smet, op. cit., n. 36. ■■ Cod. Idb. Can., Can. 88, ?2. Preliminaries to Marriage. 51 both the man and the woman were absent from their parish for that length of time, each of them should produce two witnesses, unless, in case they resided in the same locality, the same two witnesses are qualified to testify for both. The same is to be done for every six months that were spent in the territory of different parishes. The Bishop may have recourse to any other measure which in his estimation would serve the pur- pose of ascertaining the free state of the contracting parties.^" Should a suspicion arise that the party con- tracted an impediment while residing in a place for even a shorter time than specified above, the Bishop should not permit the contemplated marriage until such a suspicion has been removed. This is to be ac- complished by having recourse to the same process which is prescribed for those who resided outside their parish for six months. The Ordinary is empowered to dispense from the law promulgated in the two fore- going paragraphs if he has a well-founded probability that the parties did not contract an impediment during their absence from their parish. 101. The publications are to be made in the Church. Since this duty of making the publications devolves on the proper pastor, the natural inference is that they should not be made in a public chapel, unless it serves at the time the purpose of the parochial church and the parochial Mass is celebrated in it." We must bear in mind that the main purpose of this law of publishing the banns in the parish church is not to emphasize the place of publication so much as the presence of a large gathering of people whom the Church wishes to ap- prise officially of the marriage about to be contracted. It was for this reason that St. Alphonsus attributed " Benedict XIV, ep. "Faucis abhine," 19 mart. 1758 ; S. C. S. Off., instr., 21 aug. 1670; instr. (ad Ep. Orient.), 22 aug. 1890, n. 2, "Wernz, op. cU., n, 139; S. C, C, 1 iul. 1724. 52 The New Church Law on Matrimony. to this law so extensive an interpretation/* It seems probable, he says, that without mortal sin, and if there is a reason, even without any sin whatsoever, one may announce the banns of marriage even outside the church when a large concourse of people convenes for a sacred purpose, like a procession, a sermon, etc. Therefore it is legitimate to conclude that this law may be modified in certain instances at the discretion of the Bishop. A decree of the Sacred Congregation of the Council, dated July 1, 1724, gives an express permission to announce the banns even in a church in which the parishioners convene only on extraordinary occasions for the celebration of the divine mysteries. 102. Another important factor relative to banns is the time regulating their proclamation. On three con- secutive Sundays or holydays of obligation, one an- nouncement is to be made. An interruption is not only to be tolerated but commended, should the three days follow one immediately after another. Such a precau- tion would provide more time for the detection of an impediment, if there should be any.^^ 103. Formerly the canonists adhered to the opinion that no announcement of banns is permissible on sup- pressed feasts except with the consent of the Ordi- nary.*" It would seem that the spirit pervading the new legislation on this point would permit the pastor to proclaim the banns of marriage even without con- sulting the Ordinary, provided there is a concourse of people present at the Mass celebrated on a suppressed feast. 104. The proclamation of banns must take place " Theologia Moralis, lib. VI, n. 992. " Gaspabri, op. cit., n. 165 ; Webnz, op. cit., n. 138 ; De- Becker, op. cit.. p. 233. " Gasparei, op. cit., n. 166; Wernz, op. cit., n. 138; De Smbt, op. cit., n. 38 ; Feije, op. cit., n. 247 ; ' Synodus Dioecesana Albanensis, pars II, art., X, n. 9, De matrimonio. Preliminaries to Marriage. 53 during Mass or during some other divine service, pro- vided in the latter instance there is present a large gathering/' The words "aut inter alia divina officia" are to be interpreted in a broad sense. Under such services one may include Vespers, Benediction of the Blessed Sacrament, an announced sermon, a special novena or procession, ///. Dispensation from the Proclamation of Banns. (Canon 1026— Canon 1034.) 105. Neither apparent uselessness nor moral cer- tainty as to the absence of an impediment, nor publi- cation made by civil authority can release the pastor from the obligation of proclaiming the banns of mar- riage for this law is not based on the presumption of fact but on universal danger. He may lay it aside in mixed marriages ^' (in which case the proclamation is forbidden), in cases of urgent necessity when the mar- riage cannto be delayed until a dispensation is obtained from the Ordinary,^" and in marriages of princes by virtue of universal custom." There are other instances in which the parties may be dispensed from having their banns announced. The Council of Trent reserves to the Bishop and to his delegates the right to decide whether the case under consideration warrants a dis- pensation or not.*' To dispense from all publications sine causa would be exposing oneself to the danger of mortal sin.'"' This statement is not to be applied to a *' S. C. C, 25 Oct. 1580 ; Eituale Romanum, tit. VII, c. I, de Sacra- mento matrvmonii, n. 7, 12, 13. " Cod. Idb. Can., Can. 1026 ; see this work, n. 108. " Op. cit., Can. 1019 and 1043 ; see this work, n. 83 ff. and n. 151 fE, "Scavini, III, n. 897; Ga.spahbi, op. cit., n. 154; De Smet, op. cit., n. 42; Wernz, op. cit., n. 136 note 17; Bassibey, De la Clandest., n. 204. " Sessio XXIV, c. I. " Gaspakki, op. cit., n. 184 ; Benedict XIV, const. "Nimian licentiam," $13, 18 maii 1743. 54 The New Church Law on Matrimony. hypothetical case when the Bishop has a moral cer- tainty that the parties do not labor under an im- pediment/' If there is a well-founded suspicion of the presence of an impediment the Bishop should not dispense from all three publications. In the absence of such a suspicion, according to the common opinion of the canonists, he should never deny a dispensation, if its granting would be the occasion of signal spiritual or temporal good and its refusal the source of notable spiritual or temporal evil.*^ The gravity of the cause is the determinant of the number of publications from which the Bishop may dispense. D'Annibale puts it in very concise language: "Caeterum Ordinarius non permittitur dispensare pro libito, sed ah una ex iusta causa, a duubus ex gravi, ah omnibus ex urgentissima causa." *^ 106, The Ordinary v/ould have a sufficient cause for dispensing from one or more publications of the banns in the following instances : If on account of disparity of age the sacrament would be exposed to ridicule and the contracting parties to public derision; if the proclamation would prove an occasion of scandal or infamy for the parties who are wrongly reputed as united in marriage; if there is a question of a mar- riage of conscience ; if one or both contracting parties must needs embark on a long journey and, -without grave spiritual or material detriment, their marriage cannot be postponed; in periculo mortis, as already explained ; "* if it is feared that by delaying the mar- "St. Alphonsus, op. eit, lib. VI, n. 1006; Scavini, op. cit., Ill, n. 905; GioviNE, op. cit., §356. •'Sanchez, op. cit., Ill, IX; Schmalzqeubee,, op. cit., IV, III, n. 23 sq.; GioviNE, op. cit., §358; St. Alphonsus, op. cit., VI, n. 1005; YODEB, op. cit., e. I, art. I, §3; Gaspabri, op. cit., n. 186; Wernz, op. cit., n. 142. " Op. cit., vol. Ill, n. 453, note 7 ; Benewct XIV, const. "Nimiam Ucentiam," 18 mail, 1743, §5, 10, 11. "See this work, n. 83 ff. and n. 151 ft. Preliminaries to Marriage. 55 riage one of the parties will change his mind and matri- mony is the only means whereby the reputation of the other party can be safeguarded; if there is sufficient ground to fear that the marriage will be prevented by some evil machinations." The pastor who asks for a dispensation from the banns should facilitate the task of the Bishop by rendering him morally certain that the parties are free to marry. 107. The Ordinary, instead of the foregoing form of proclaiming the banns, may use another. He may post publicly, for eight consecutive days, the names of the contracting parties at the door of the parochial church or of any other church, taking care that this period will include two holydays of obligation.^^ The prerogative contained in this canon is not altogether new. Some very large parishes enjoyed the same privilege for many years before the present legislation extended it to the universal Church. The Bishop alone has the right to benefit his diocese by prescribing for it this law. The names of the contracting parties must be placed conspicuously at the door of the church. As a matter of advisability the pastor who intends to make use of this privilege habitually, should reserve a determined place at the door for this purpose, to which he should call the attention of the congregation. Two of the eight days during which the names are to remain at the door must be holydays of obligation, as, for instance, two Sundays, or a Sunday and a holyday of obligation. It would seem that even a suppressed holyday of obligation should suffice for this purpose. 108. Marriages to be contracted with a dispensa- tion from the impediment of disparity of worship or of mixed religion should not be announced unless the =' Gasparri, op. cit, n. 186 ; Wernz, op. cit., n. 142 ; De Smet, op, cit., n. 43. i'Cqd. Iur. Can., Can. ;025, 56 The New Church Law on Matrimony. judgment of the Ordinary, scandal having been re- moved, directs otherwise. Should the proclamation be made, the apostolic dispensation, must first be obtained and no mention is to be made of the religion of the non-Catholic party.^" If the Ordinary thinks the proc- lamation of banns in mixed marriages expedient, this canon must be followed to the very letter. The banns of such marriages must be published either viva voce, as was customary in the former discipline, or by plac- ing the names of the contracting parties at the door of the church, if the parish enjoys that privilege. 109, Any impediments of which the faithful have knowledge must be revealed to the pastor or the Ordi- nary of the place before the celebration of marriage.^* The impediments must be manifested whether diri- ment or impedient, public or occult. The ordinary secrecy imposed by natural law, even if confirmed by oath, does not free one from this grave obligation.^' Secretum commissum, aut grave damnum, aut pericu- hom damni gravis turn privati ipsius revelantis, tum propinquorum, tum societatis justifies one in keeping silent.'® Knowledge acquired under the seal of confes- sion or occasione confessionis is not subject to mani- festation." 110. The duty to reveal matrimonial impediments is founded on natural and divine law, and the purpose of this ecclesiastical law is merely to emphasize, ex- plain and enforce it. At the base of this obligation are charity towards one's neighbor and consideration for the general welfare of society. An occult impediment ■■Cod. Iub. Can., Can. 1026; S. C. S. Off., litt. (Ad Vie. Ap. Mys- surien.), 26 nov. 1862; litt. 4 iul. 1874. "Cod. Iur. Can., Can. 1027. "^ Gaspabri, op. cit., n. 177 ; WiaiNZ, op. cit., n. 143 ; De Smet, op. cit., a. 44; Feije, op. cit., n. 269. "C. 7, X, de cog. spirit. IV, 11; c. 27, X, de spons. IV, 1; o. 6, qui matrimonium aocusare possunt, vel contra illud testificari, IV, 8. "' SCHMALZGBUBEiR, h. t., n. 51 sq. ; Gaspabrj, op. cit., n. 174. Preliminaries to Marriage. 57 for which dispensation has been obtained pro foro con- scientiae need not be revealed,'' unless there is danger of scandal, in which case a dispensation should be re- ceived also pro foro externa before the marriage is contracted. 111. The proper Ordinary of the place at his own discretion is authorized to dispense for legitimate rea- son even from those publications which would have to be made in another diocese. If there are several proper Ordinaries the right to dispense is ceded to the one in whose diocese the marriage is actually to be con- tracted. If the marriage is celebrated outside the proper diocese, any proper Ordinary has the power to dispense.'" The words of this canon "loci Ordinarius proprius" refer to the Ordinary in whose diocese the contracting parties have acquired a domicile or a quasi-domicile.°° If both of them have their domicile or quasi-domicile in the diocese within whose territory they intend to contract marriage, their Bishop has the power to dis- pense from publications which would have to be made in another diocese," if, for instance, the parties in question spent at least six months in the latter after their attainment of the age of puberty.*^ If the con- tracting parties acquired a domicile or a quasi-domicile in several dioceses and in one of them they intend to contract marriage, then only that Ordinary has the right to dispense from the proclamation of banns iti whose diocese the marriage is actually solemnized. Should the marriage be contracted in a diocese in which they do not possess a domicile or quasi-domicile, »'Wernz, op. cit., n. 144; Gaspaeki, op. cit., n. 178. "Cod. Iue. Can., Can. 1028. "Op. cit., Can. 94. "Benedict XIV, ep. encycl. "Satis VoTjis," 17 nov. 1741, $5; S. C. S. Off. (Quebec), 14 iun. 1703; S. C. de Prop. Fide, instr. (ad Archiep. Vic. Ap. Indiar, Orient.), 8 sept. 1869, n. 50. "' Consult Cod. Iur. Can., Can. 1023, §§2 and 3. 58 The New Church Law on Matrimony. then any of the foregoing different proper Ordinaries, whom the parties acquired by virtue of their several domiciles or quasi-domiciles, may grant the dispensa- tion. In the case of vagi only the Ordinarius loci, in whose diocese the marriage is contracted, has the power to grant such a dispensation. 112. The Codex states unequivocally that an indi- vidual can acquire a proper pastor or Ordinary in no. other way than by means of a domicile or quasi-domi- cile. A person who merely to satisfy the letter of the law takes up his abode for a month in a strange parish in order to be qualified thereby to contract marriage in it licitly,^^ does not by that very fact necessarily lose his domicile or quasi-domicile nor can he be forced to acquire a new one. Perhaps it is for this reason that the Codex disqualifies the pastor or the Ordinary in whose parish or diocese such a residence has been established, from thereby becoming the parochus or the Ordinarius proprius partium."* The natural infer- ence is that the Ordinary cannot dispense the parties (who established only one month's residence in some parish of his diocese) from proclamation of banns to be made in the diocese in which they formerly resided. 113. If another pastor made the investigation or announced the banns, the result must immediately be communicated by means of an authentic document to the pastor who is to assist at the marriage.'^ The pastors who are not to assist at the marriage but are connected with it either because they were called upon to make the investigation or to announce the banns, must send testimonial letters to the pastor who is to solemnize it. In this document they should apprise him of the result of their inquiry. They should not fail " Cod. Iur. Can., Can. 1097, 51, n. 3. " Op. cit., Can. 95. " Op. cit., Can. }029. Preliminaries to Marriage. 59 to state clearly whether their investigation revealed the presence or the absence of an impediment or a suspicion thereof. The Christian name and the sur- name of the contracting parties, the name of their parents and of their domicile should be distinctly stated in the document imparting the foregoing in- formation. In addition to this, the foregoing docu- ment must also state the name of the church and the day on which the proclamation of the banns was made for the last time. If a dispensation was given from any publication this fact should also be noted. The date and the name of the place should never be omitted and the document should bear the signature of the pastor. If the marriage is to be celebrated in another diocese it should be countersigned by the Ordinary and brought to the notice of the Bishop in whose diocese the marriage is to be solemnized. The last two pro- visions may be disregarded if custom has established a contrary practice. 114. The pastor should not assist at the marriage unless, besides having made the investigation and an- nounced the banns, he has secured all the necessary documents, and three days have elapsed since the last publication or a reasonable cause excuses from such delay. If the marriage is not solemnized within six months, the proclamation of the banns must be re- peated, unless the Ordinary decides otherwise."" The first part of the foregoing canon retains the former discipline," but the prescription of a three days' delay is an innovation. In the past marriages did not have to be deferred for any prescribed time, but it was generally agreed that a delay of twenty-four hours sufficed after the last publication of the banns. The pastor is the authorized judge in deciding whether this " Cod. Iur. Can., Can. 1030. "Wernz, op. cit., n. 147; Gasparei, op. cit., n. 191. 60 The New Church Law on Matrimony. law is to be observed in particular instances. He has the right to dispense himself from retarding the mar- riage in the presence of a reasonable cause. The term "rationabilis," together with the fact that the decision is left to the judgment of the pastor, intimates that even a slight cause would be sufficient. The other new regulation introduced by this canon is the repetition of the proclamation of banns in case the marriage was not contracted within six months. These six months begin to run with the fourth day fol- lowing the publication of the banns for the last time, for the parties had no right to be married before that. To the Ordinary of the place is reserved the right to dispense from the renewal of the proclamation of banns if in his judgment there is a sufficient reason to put aside this law."' 115. Some questions might arise as to the procla- mation of banns when there is a doubt as to the pres- ence of an impediment. To provide for such contin- gencies the Codex of Pius X legislates specifically by prescribing the following course: In order to remove the doubt the pastor should give the matter a more thorough investigation by examining two witnesses and, if necessary, the contracting parties themselves, provided there is no question of an impediment whose revelation would bring infamy to the latter. The proclamations should be started or finished according as the doubt arose before they were commenced or subsequently, but before their completion. The pastor should not assist at the marriage without consulting the Ordinary if in his judgment the doubt is not re- moved. Should the presence of an impediment be ascertained, its nature will determine the course the pastor is to pursue in the announcement of the banns. ™S. C. S. Ofe., instr. (ad Ep. Orient.), 22 aug. 1890, u. 6; Eituale Rom., tit. VII, e. I, de Sacramento matrimonii, n. 11. Preluninaries to Marriage. 61 Should the detected impediment be occult the pastor is to start or, if already started, complete the procla- mation of the banns and lay the matter before the Bishop of the place or before the Sacred Penitentiaria, suppressing the names. If the impediment is public and not discovered before the proclamation of the banns began, the pastor should not proceed any further until the impediment is removed, though he may have certainty that a dispensation was obtained from it but only for the internal forum. Should the impediment be detected after the first or the second publication the pastor is to complete the publication of the banns, and refer the matter to the Ordinary."" Finally, if neither a certain nor a doubtful impediment is discovered, the pastor, having finished the publications, should permit the parties to enter into marriage.'" 116. The doubt of which this canon speaks must be a positive, not a negative doubt, dubium facti, not duhium iuris, for in the latter instance the laws would not urge." In the matter of matrimonial impediments dubium dubio iuris is a doubt in which it is questioned whether a certain circumstance constitutes an obstacle disqualifying a person from contracting marriage validly or licitly. In the case of duhium dubio facti it is certain that this circumstance does constitute an impediment, but a doubt arises as to its presence in the case under consideration. Only in this latter in- stance is the pastor bound in conscience to settle the doubt. Should this doubt continue even after the proclamation of the banns, the pastor before permit- ting the parties to enter into marriage must inform the local Bishop of this fact." "'Benedict XIV, ep. encycl. "Nimiam licentiam," 18 maii, 1743, $10. '» Cod. Iur. Can., Can. 1031 ; see this work, n. 87. " Op. cit., Can. 15. "8 C. S. Off., instr. 21 aug. 1670; 24 febr. 1847; mstr. (ad Ep. S. Alberti)j 9 dee. 1874; instr. (ad Ep. Orient.), 22 aug. 1890. 62 The New Church Law on Matrimony. 117. The witnesses of which this canon speaks need not have other qualifications than reliability and trust- worthiness, they may be Catholics or non-Catholics, even infidels, men or women. Any impediment that can be proved in the external forum is regarded as public, otherwise it is occult.''' If the pastor is aware of the fact that a dispensation has been obtained pro fore interna from a public impediment, it is legitimate to presume that such an impediment has already been lifted, and he may act on it also pro foro externo, salvo scandalo. It is necessary to have recourse to the Ordinary in all cases of doubt, even if one might run the risk of sinning by excess, for the pastor may admit the parties to marriage only when he has ascertained the absence of all impediments or at least has received a dispensation ad cautelam from those that are doubtful.'* 118. Except in case of necessity the pastor should not assist at the marriage of the vagi of whom mention is made in canon 91, unless the matter is first laid be- fore the Bishop or a priest delegated by him.'" The legislation embodied in this canon is the same as that enforced by the Council of Trent.'" In large dioceses it is advisable on the part of the Bishop to authorize certain priests, preferably deans, located in different parts of the diocese, to whom the pastors can have recourse whenever they have occasion to witnpss the marriages of vagiJ'' If a vagus wishes to marry one who has a domicile or a quasi-domicile the proper " Cod. Iur. Can., Can. 1037 ; see this work, n. 167 and 168. "Benedict XIV, ep. eneyel. "Satis Vohli," 17 nov. 1741; Eitualb Rom. tit. VII, e. I, de sacramento matr. n. 8; c. 2, Situs celebrandi matr., n. 1. " Cod. Iub. Can., Can. 1032. "De reform, matr., scssio XXIV, c. VII. " S. C. C, deer. "Ne temere," 2 aug. 1907, art, V, ^4 ; Rituale BoM,, tit. VII, c, J, de Sacramento matr., n. 6, Preliminaries to Marriage. 63 course would dictate that the pastor of the latter should assist at the marriage. Thus, for instance, if the bride is a vaga and the bridegroom a vagus, any pastor with the permission of his Ordinary may assist at the marriage, but if the bride should have a domicile or a quasi-domicile, and the bridegroom is a vagios, the pastor of the former may witness the marriage without consulting the Ordinary. The Tridentine decree did not mean to affect individuals Avho are momentanee vagi, who, namely, have abandoned their former domi- cile or quasi-domicile but have failed as yet to acquire a new one.'' The present law being the same, the majority of recent canonists distinguish between mo- mentanee vagi and habitualiter vagi. Wouters," Leit- ner *" and a few of less note include both these classes under this law. If a delay would prove an occasion of scandal, of serious financial loss, or of a well-grounded hope that the parties Avill attempt marriage by a min- ister or a civil magistrate, or will live in concubinage, then the pastor, facing a case of necessity, may sol- emnize the marriage of vagi even without having previous recourse to the Ordinary, biit he must first endeavor to the best of his ability to ascertain their free state. 119. The pastor should not neglect to direct an in- struction to the parties, accommodated to their condi- tion in life, in which he will point out the sanctity of the sacrament of matrimony, the mutual obligations of the consorts, and the duty of parents toward their off- spring. He should urge them fervently to approach the tribunal of "penance with sincerity, and the table of " Wernz, op. cit., a. 178 ; Gasparri, op. cit., n. 146 ; De Smet, op. cit., n. 75; Sanchez, op. cit, III, XXV, n. 2; St. Alphonsus, op. cit., VI, n. 1089; Perberes, Los. Esponsclcs y el Matrimonio, n. 254, 271, 499. ^'' Commcntarius in decretum "Ne temere," p. 54. Amstelodami, 1910. '"Die Verlobungs- und Eheschliessungsform nacli dem DcTcrete "Ne temere," p. 42. Eegensburg, 1910. 64 The New Church Law on Matrimony. the Lord with piety." This instruction should not be omitted unless the case is extremely urgent. If it is not possible to impart it outside the tribunal of pen- ance, it ought to be given during confession. The pastor should dwell on the holiness, dignity and im- portance of the sacrament, and on the piety with which it should be received. He must inculcate and explain the obligations of husband and wife, their mutual love, fidelity, trust, the protection of the wife by the husband and her submission to him, the honesty of the conjugal act, and the sinfulness of all actions tending to race- suicide. He. must emphasize, furthermore, the duty of the parent toward the child, the latter 's right to bap- tism as soon as possible, to Christian education from his tender years and to parental solicitude as regards his material wants.*^ 120. Confession is not to be regarded as a conditio sine qua non, not even if one or both of the contracting parties should be in the state of mortal sin. The pastor should do his utmost to deter such a party from so grave a sin, and should endeavor to prevail on him by pointing out the manifold necessary sacramental graces of which he deliberately deprives himself. If he fails in this attempt he should induce the person in question to make at least an act of perfect contrition. The state of mortal sin results in a sacrilegious recep- tion of the sacrament, but it does not interfere with its validity. If, however, the party is a public sinner, or is bound by a public censure, unless he first confesses his sins and reconciles himself with the Church, the pastor without grave cause is not permitted to witness his " Cod. Iur. Can., Can. 1033. "Cono. Trident., sessio XIV, de reform, matrim., c. I; S. C. S. Off. (Kentucky), 9 mail, 1821; (Vic. Ap. Sandwic), 11 dec. 1850, ad 21; Mogwntina, 28 aug. 1852; Eitualb Rom., tit. VII, c. I, de sacr. matrim., a. 17; Gasparri, op. cit., n. 196. Preliminaries to Marriage. 65 marriage. If possible the Ordinary should be con- sulted about the grave cause in the case under consid- eration.*'' Should a public sinner confess his sins to another priest, the pastor should demand a testimonial to that effect. 121. The pastor should exhort the children who are still minors, not to enter into marriage without the knowledge of their parents, or against their will when they have a reasonable objection. Should the children disregard his counsel he is not to assist at their mar- riage unless he first consults the Ordinary of the place.** The children to whom this canon refers are thosd who have not as yet completed their twenty-first yea?-.*' For the validity of the marriage it is required that the boy should have completed his sixteenth and the girl her fourteenth year,*" Formerly the reasonable dis- sent of the parents was generally regarded as an im- pedient impediment. 122. The right to marriage has always been con- sidered one of those rights which the minor was not supposed to exercise without the consent of his parents. Among the Hebrews and the Greeks it was generally the parents who selected a suitable consort for their children, regardless of whether the child was a minor or a major." A similar practice prevailed among the Romans and in their law the consent of the parents was essential. Only in certain exceptional instances was the marriage considered valid without it.*' The Germanic law prescribed the consent of the parents as "' Cod. Iur. Can., Can. 1066. " Op. cit., Can. 1034. " Op. cit., Can. 88. " Op. cit.. Can. 1067. " Benedict XIV, const. "Postremo mense," f ebr. 28, 1747 ; S. Ambr., p. 13, C. XXXII, q. 2. •" L. 9, 10, 19D, de ritu nupt., XXII, 2 ; L. 18, 25 C. de nuptiis, V, 4. 66 The New Church Law on Matrimony. a necessary requisite for the marriage of a minor.'' It cannot be proved that the Roman law was trans- planted into the Church in all its rigor, namely, as in- validating marriages contracted without the consent of the parents. Though from an examination of the early laws this contention cannot be vindicated conclusively, yet no doubt can be entertained on the question since the twelfth century, owing to the apodictic proofs in which the Decretals abound."" By way of explanation it may be added that if, on the one hand, the Church laid such emphasis on the consent of the parents to protect their rights, on the other hand, it did not fail to safeguard the rights of the offspring by forbidding the parents to force their child to a marriage against his will. 123. The want of parental consent no longer con- stitutes an impediment, though the licitness or the illicitness of the assistance of the pastor is conditioned on it. To harken to the parents in a matter of such importance is a precept imposed on the children by virtue of natural law. The pastor may assist at the marriage without consulting the Ordinary if, in his estimation, the objection of the parents raised against the contemplated marriage is unreasonable."^ The right to object is reserved to the parents alone and it is not to be extended to the tutor in the event of the parents' demise. If one parent assents and the other dissents the pastor is free to act. Among such reason- able causes could be enumerated disgrace, dissension or grave damage to the family from such a union. " SCHULTE, Sandbuch des Tcatholischen Eherechts, §31. Giesen, 1855; Mot, Das Eherecht der Christen in der morgenldndischen und dbendl-dndischen Eirche, p. 316 ff. Eegensburg, 1833. "C. 2, C. XXVII, q. 2; Benedict XIV, De synndo, vol. I, Lib. IX, c. XI, n. 3. Petr. Lombakm, Sent., lib. IV, dist. XXVIII. "C. 11, C. XXXVI, q. 2; c. 23, X, de sponsalibm etmatrim., IV, 1; Benedict XIV, ep. encycl., "Ni/muim Ucentiam," 18 mail 1743, ^10. CHAPTEE IV. Matkimonial Impediments. I. General Notions about Matrimonial Impediments. 124. Though for about eleven centuries the word " im,pedimentum" was unknown in the vocabulary of the canonical discipline of the Church/ the canons of the Councils held as early as the sixth century give an unmistakable expression to the idea conveyed by it.^ Gratian ^ and Peter Lombard employ various terms to express the notion connoted by the word "impedi- ment, ' ' but the word itself never occurred to them. It is rightly associated with the name of Bernardus Papiensis (1139) for, to all appearances, it was he who used it for the first time,* in the list in which he enum- erated the fourteen causes which "impede" matri- mony.' Alexander III about half a century later bor- rowed this term as a vehicle of expression " in connec- ' ViLLiEN, L'empechement de mariage. Sa notion juridique d'apris I'histoire. In the Canoniste Contemporam, 1903, p. 421. ' Synodus Agathensis (506), can. LXI; Mansi, op. cit., vol. VIII, col. 335. Cone. Aurelianense (511), can. XIII; Mansi, vol. VIII, col. 353. Synodus Epaonensis (517), can. XXX; Mansi, vol. VIII, col. 562. Cone. Vermeriense (753, 756), can. I; Mansi, vol. XII, col. 566. ' C. 6, 8, C. XXX, q. 5. *Webnz, op. cit., n. 217; Villien, loo. cit., p. 422; Esmein, op. cit., vol. I, p. 205. • "Sunt autem quae, matrimonium impediunt, XIV : Votum, ordo, ha- bitus, dispar cultus, error personae, conditio, ligatio, enormitas delicti, impossibilitas eoeundi, coactio, publicae honestatis iustitia, tempus feriarum et interdictum Ecelesiae" {Summa Bhrnaeu). Pap.; IV, 1, ^6, p. 221. Ratisbon, 1861; cf. Summa de m,atrimonio, p. 228; ib., Wernz, n. 217, foot-note, 22). ° C. 4, X, qui clerici vcl voventes matrimonium contrahere possunt, IV, 6. 67 68 The New Church Law on Matrimony. tion with the impedient impediment arising from a simple vow. The word was subsequently accepted by the majority of theologians '' and received official recog- nition by the Council of Trent.' 125. The references already cited testify to the pro- nounced lack of uniformity disclosed by the authentic sources containing an account of the pre-medieval canonical discipline as to the number and force of matrimonial impediments. The fact that the early theologians placed indiscriminately in one and the same list the impedient and the diriment impediments without taking heed to point out the particular force of each, contributed not a little to the then prevailing perplexity whose most regrettable feature lay in the fact that some impediments were regarded as diriment in certain localities and as impedient in others. Thus, for example, the impediment of Holy Orders was not looked upon as a diriment impediment for the xmi- versal Church until the First Lateran Council ex- pressly ruled so. The Council of Trent failed to remove this dis- agreement existing among the theologians, for even the more modern authors differ when engaged in the determination of the number of matrimonial impedi- ments.' 126. The rule of Innocent III as regards lawfulness to marry " has been practically incorporated into the Codex of Pius X. All persons may marry except those who are forbidden by law." Such has ahvays been the discipline of the Church as defended against Marcion- ' C. 1, de cognatione spirituali, IV, 3, in VI° ; C. im. de voto et voti redemptione, tit. VI, in Eartravag. Joan. XXII. ' Sessio XXIV, De Sacramento matrimonii, can. Ill ; and Be re- formatione matrimonii, cap. III. "De Smet, op. cit., n. 235; Wernz, loc eit., Notae Historicae, II. "C. 23, X, de sponsalihus et matri/moniis, IV, 1. " Cod. Iur. Can., Can. 1035. Matrimonial Impediments in General. 69 ism and Manichaeism." The law which stands in the way of marriage may be either divine or human. The former may be either natural or positive. The latter may be either ecclesiastical or civil according as it proceeds from a competent ecclesiastical or civil authority.'' 127. The impediments of divine law, whether nat- ural or positive, affect all persons regardless of creed. The impediments of civil law bind the infidels, while those of ecclesiastical law affect only such persons as are brought under the immediate jurisdiction of the Church by means of baptism. Therefore, the lawful- ness or validity of marriage contracted between two unbaptized persons depends on the divine and the civil law. The lawfulness or validity of marriage entered into by two baptized persons must be judged according to the positive divine and ecclesiastical law. The com- petence of the civil law in this last instance cannot go beyond the civil effects of such marriage. 128. A marriage forbidden by law may be illicit or invalid. The invalidating clause must be obvious, it may not be presumed.'* Owing to the principle laid doAvn in the foregoing paragraph a marriage between two infidels, though only illicit by virtue of the divine law, may be invalid by the force of the civil law. In the same way a marriage may be invalid owing to ecclesiastical law, though by virtue of divine law it may be only illicit if contracted between two baptized persons, or between a ba^ptized and an unbaptized person. ""C. 2, X, de coniugio leprosorum, IV, 8; C. 1, de coniugio servorum, IV, 9; Professio fidei (in Cone, LugcTunen. II) a Michaelo Palaeologo Gregorio X oblata a. 1274. "Wernz, op. cit., n. 215; Gasparrj, op. cit., n. 245. " De regvlis iuris, Reg. LXIV, in VI° ; Sanchez, lib. VII, Disp, II, and disp, LII, n. 5; Bbnedictus XIV, Be Synodo, lib. XII, Cap. I, n, 3. 70 The New Church Law on Matrimony. 129. Every marriage is licit and valid unless its lawfulness or validity is prevented by an impediment of divine or human origin. No absolute uniformity prevails as to the definition of a matrimonial impedi- ment. The majority of authors maintain that it is a circumstance established by law rendering the matri- monial contract either illicit or invalid.^^ A matri- monial impediment, therefore, is the presence of a specified cause which under certain conditions or cir- cumstances, by virtue of divine or human law, affects the lawfulness or the validity of a marriage contract. This definition contains all the factors connected with an impediment. It must be borne in mind that the sacrament of matrimony is affected by an impediment only indirectly. Directly it aims at the contract whose validity or invalidity determines the reception or non- reception of the sacrament between two baptized per- sons. The new discipline has abolished some impedi- ments, while others it has modified. The impedient impediments are four : 1. Simple vows (votum simplex) ; " 2. Legal relationship [cognatio legalis) in conform- ity with the civil law of the country ; " 3. Mixed religion {mixta religio) ; ^' 4. Unworthiness (indignitas) .^^ 130. The diriment impediments are thirteen : 1. Want of required age (aetas) ; ^° " Gaspaeri, op. cit., n. 247; Wernz, op. cit., n. 215; D'Annibale, op. cit., vol. Ill, n. 428; De Smet, op. cit., n. 234; Heiner, Grundriss des Icatholischen Eherechts, p. 54. Munster i. W. 1905. The Codex of Pius X treats of the impediments of marriage in the following canons : '"Can. 1058. " Can. 1059. " Can. 1060-Can. 1064. " Can. 1065 and 1066. ^Tan. 1067. Matrimonial Impediments in General. 71 2. Impotency {impotentia) ; ^^ 3. Undissolved marriage bond (ligamen) ; '" 4. Disparity of worship {disparitas cultus) ; ^^ 5. Holy Orders (ordo) ; '* 6. Religious profession {professio religiosa) ; ^^ 7. Abduction (raptus) ; ^° 8. Crime {crimen) ; " 9. Consanguinity (consanguinitas) ; ^' 10. Affinity {affinitas) ; '" 11. Public decency {publica honestas) ; ^'' 12. Spiritual relationship {cognatio spiritualis) ; ^' 13. Legal relationship {cognatio legalis) ; in con- formity with the civil law of the country.^^ II. Different Kinds of Impediments. (Canon 1036— Canon 1037.) 131. There are different kinds of impediments of which the new Code of Canon Law makes mention. I. An impedient and a diriment impediment. The impedient impediment implies a grave prohibition to contract marriage. If, however, notwithstanding such prohibition the marriage should be contracted its validity is sustained by the Church.^^ A diriment im- pediment in addition to the grave prohibition contains also an invalidating force ^* in case a marriage should be attempted notwithstanding the presence of such an obstacle.'^ Since the individuality of the matrimonial contract presupposes the competence of both parties, the contract would be respectively illicit or invalid "Can. 1068. =' Can. 1073. =»Can. 1077. •'Can. 1069. " Can. 1074. •" Can. 1078. "Can. 1070 and 1071. " Can. 107.5. " Can. 1079. " Can. 1072. ^ Can. 1076. " Can. 1080. " Cod. Iuk. Can., Can. 1036, $1. " Op. cit., Can. 1036, 52. " C. un. de voto et voti redemptione, tit. VI, in Extravag. Joan. XXII. 72 The New Church Laiv on Matrimony. according as one of the persons should be bound by an impedient or diriment impediment/" This last principle, formerly controverted but at present em- bodied in the new legislation, finds its practical appli- cation in marriages contracted with a dispensation from the impediment of disparity of worship. Thus, for instance, some states of North America, whose statutes prohibit miscegenation, establish a civil diri- ment impediment of marriage between a white person and a negro or an Indian or a Mongolian." If a Catholic of the white race should attempt to marry an infidel belonging to any of the above mentioned races in a place where the latter has his domicile and where miscegenation is a grave statutory offence nullifying marriage, the Church would not uphold the validity of such contract by the mere fact that it was entered into according to the due form and with the necessary dis- pensation. The same is true in case a Catholic of the colored race should wish to marry an infidel of the white race under the same circumstances. An ecclesi- astical dispensation from the impediment of disparity of worship gives permission to the Catholic to contract marriage with a competent infidel, but it does not mean to remove the civil impediment under which the latter may be laboring. The invalidity of the aforesaid mar- riage would not result from the impediment of dis- parity of worship, which according to the present dis- cipline does not arise between a baptized non-Catholic and an infidel. It would be occasioned by the civil diri- ment impediment intending to prevent the amalgama- tion of races. 132. II. An impediment may be public or occult.'* " Cod. Idr. Can.. Can. 1036, §3. " Keezer, The Law of Marriage and Divorce, $26, p. 18. Boston, 1906. " Cod. Iuk. Can., Can. 1037. Matrimonial Impediments in General. 73 It is regarded public when it can be proved in the external forum; othermse it is considered occult.''^ With the adoption of this canon many of the insur- mountable difficulties arising in the past will be elimi- nated. In the former discipline the impediments of con- sanguinity, of affinity arising from matrimonial carnal intercourse, of spiritual and legal relationship, of Holy Orders and of disparity of worship were considered public ex natura sua. The others were either public simpliciter, or occult simpliciter, or omnino occult. Gieran thinks that impediments public by their very nature will not be regarded as occult by the present legislation even if they could not be proved by the external forum." Our opinion is just the contrary. It is precisely with that end in view that the canon em- ploys the word "censetur" in preference to the word "est." To decide whether an impediment is public or occult, naniely, whether it can or cannot be proved in the external forum, one must possess probationem plenam, probatio sem,i-plena does not suffice. To ex- emplify this canon : If after a diligent inquiry it is con- cluded that the impediment of consanguinity existing between two parties cannot be proved in the external forum, then it must be treated as an occult impedi- ment, for instance, if only one of the contracting par- ties knows of the blood-relationship. Therefore in this case as well as in any other where an occult impedi- ment is involved the dispensation is to be asked from the internal forum, the external forum being mostly for public impediments. On the other hand, if the im- pediment of crime utroque coniuge vel alterutro ma- chinante can be proved in the external forum, then if must be regarded as public. Thus, for example, per- '» S. C. C, Mohiloven. seu Tiraspolen., 9 iul., 10 sept. 1881. *" The new Canon Law in Us practical aspects. In the American Ec- clesiastical Beview, 1918, p. 149. 74 The New Church Law on Matrimony. sons guilty of such a crime take up an abode in a dis- tant country where their crime is unknown, but it is knoAvn in the place in which they resided formerly. The other kinds of impediments of which the new legislation makes no explicit mention but implicitly approves the old division, are the following : 133. III. According as the impediment originates from divine law (positive or natural) or from human law (ecclesiastical or civil) it is called an impediment of natural or of divine positive law ; of ecclesiastical or of civil law. The determination to which of the above- named categories of law any particular impediment belongs, must be left to that part of this work in which such impediment is treated individually. 134. IV. Impediments may be absolute or relative. The former may render the marriage either illicit or null as regards any person whatsoever, for instance, the impediment of simple vow, or of Holy Orders. The latter prohibits marriage with certain determined persons, for example, the impediment of consanguinity, affinity, spiritual relationship, crime, and disparity of worship. 135. V. Impediments may be certain or doubtful. The difference between the two is apparent. The doubt may arise either from fact or from law, or from both combined. The impediment is doubtful duhio facti, when it is beyond doubt that a certain fact gives rise to an impediment, but it is not certain that this fact actually exists in the case under consideration. An impediment is doubtful duhio iuris when the fact is self-evident, but it is questioned whether it constitutes an impediment. When both these kinds of doubts are present in one and the same case then the impediment is dubium duhio iuris simul et facti. Example for the first : It is certain that the impediment of consanguinity Matrimonial Impediments in General. 75 exists between those related in the third degree. It is doubtful, however, whether Joseph and Agnes are thus related. In all such instances the Ordinaries may dis- pense, provided the nature of the doubt is such that if the thing doubted should prove to be a fact the Holy See would dispense from the existing impediment. Example for the second: It is certain that Charles adopted Cecilia, but it is doubtful whether the adoption was such as to constitute an impediment. In all such cases the impediment may be ignored." The same is to be said as regards the third kind of doubt. 136. VI. An impediment may be perpetual or tem- porary. The duration of the first is indefinite, that of the second, temporary. Consanguinity would be an ex- ample of the former; the impediment of age of the latter. 137. VII. An impediment may be dispensable or non-dispensable, according as a dispensation can or cannot be obtained from it. 138. VIII. An impediment may be antecedent or subsequent (supervenient). The first exists prior to the matrimonial contract, for instance, the impediment of consanguinity; the latter takes rise posterior to a valid marriage, for example, affinity. 139. IX. Impediments may be occult or public by their very nature. The first are constituted principally to promote private well-being. Therefore, if a juridi- cal process should be started against the validity of a marriage owing to the presence of an impediment of the private right, the actors in such a case would, as a rule, be the contracting parties themselves. Such an impediment is, for instance, occult impotency. The impediments of public right are introduced for the welfare of the community; consequently, the right to expose the nullity of a marriage contracted with such " Cod. Iur. Can., Can. 40. 76 The Neiv Church Law on Matrimony. an impediment is not reserved to the parties in ques- tion. It belongs ex officio to the judge or promotor matrimonii, and it may be used by any person whom the ecclesiastical law qualities as legitimate actor. All persons may contract marriage unless forbidden by law.*^ The right to marriage is founded on natural law." Human authority may not forbid marriage ab- solutely, though it may relatively in certain instances and as regards certain persons who become dis- qualified by natural or ecclesiastical law, or by a just human law, or by virtue of an obligation freely as- sumed. The attitude of the Church on this point is best evidenced by the condemnation which it hurled against the erroneous doctrines of the Marcionites, Manichaeans and Eucratites as regards marriage. Under the present order of things no individual is obliged to contract marriage except accidentally, namely, when the public good or his honor demands it. The direct commands "crescite et multiplicamini et replete terram" ** was intended directly only for our first parents. Their descendants were to comply with it only collectively, namely, mankind as such, not indi- viduals as such. Therefore celibacy is permissible as long as there are enough individuals complying with the foregoing precept. If celibacy were against natural law St. Paul would not have encouraged the unmarried of his audience to remain unmarried, saying " it is good for them if they so continue. ' ' *° III. Right to Legislate in Marriage. (Canon 1038— Canon 1041.) 140. Only to the supreme ecclesiastical authority " Cod. Idb. Can., Can. 1035. " St. Thomas, suppl. Illae p., q. XLI, a. I. " Gen. I, 28. " I Cor. VJI, 8. Matrimonial Impediments in General. 77 belongs the right to declare peremptorily under what circumstances the divine law impedes marriage. The same* ecclesiastical authority, by virtue of privative jurisdiction is empowered also to introduce diriment or impedient impediments by means of universal or par- ticular law.*" This canon has already been explained."' By the words "supreme ecclesiastical authority" is meant the Roman Pontiff or the college of Bishops convened at an ecumenical council. The Church by virtue of divine right may decide what diriment or impedient impedi- ments flow from the divine law as a natural conse- quence." Such declaration binds both baptized per- sons and infidels. Because this canon mentions only divine law, one is not to infer that the Church re- nounces its claim to the right of making a similar declaration also with regard to natural law. The most general conclusion the wording of this canon would warrant is that the Church refrains from claiming that she has the exclusive right to declare under what cir- cumstances the natural law prohibits or invalidates marriage. Her exclusive right to such a declaration cannot be questioned when only baptized persons are concerned, and should she make such a pronouncement it would bind the unbaptized also. The canon means to intimate that since the unbaptized are under the jurisdiction of the civil powder, the civil law may go even so far as to interpret for them what impediments oblige by virtue of natural law. 141. The supreme ecclesiastical authority has also the exclusive right to establish impediments w^hereby marriages contracted by baptized persons are rendered " OoD. IHR, Can., Can. 1038. " See this work, n. 64 ff. "8. C. S. Off., instr. (ad Ep. Geneven.), 3 sept. 1772; instr. (ad Praef. Mission. Martinicae, etc.), 6 iul. 1817j 78 The New Church Law on Matrimony. illicit or invalid." The word "privative" means to exclude two things, namely, the civil power and the power of the local Bishops (the latter by reservation). In former discipline the Ordinaries were within their rights when they established impediments of marriage for their own diocese. Not only their direct precept but even their indirect sanction, such as a law originat- ing from custom presupposes, sufficed formerly to in- troduce an impediment. The new law suppresses this once admitted right of the Bishops and reserves to the supreme ecclesiastical authority all right to legislate for baptized persons in matters concerning matri- monial impediments. 142. In certain peculiar cases the local Ordinaries may forbid marriage for a time, but only for a just cause and while such a cause is present, to individuals actually residing in their diocese and to their subjects living outside its limits. Only the Apostolic See can add an invalidating clause to such an episcopal pro- hibition.^" The Ordinaries have not been deprived of all their power as regards matrimonial impediments. They still retain the right to establish a temporary impedi- ent impediment, in the sense of barring from marriage, for a time, certain individuals in particular instances. Such a penalty may be meted out only for a just cause and the prohibition must be removed as soon as the cause ceases.'^ Should the parties contract marriage before the cessation of the cause and the removal of the episcopal prohibition their act would be illicit but valid. If for a grave reason the Bishop should deem it *° Con. Trid., sess. XXIV, de sacram. matrvm., can. 3, 4, 9; Beistedict XIV, "Singulari," 9 febr. 1749, 52, 16, 17; Pius VI, const. "Auc- torem fidei," 28 aug. 1794, prop. 59, 60, Synodi Pistorien. damn.; Leo XIII, pp. encye. "Arcanum," 10 febr. 1880. •»COD. Iub.'Can., Can. 1039. " S. C. C, Florentina, 17 febr. 1629, ad 1, 2. Matrimonial Impediments in General. 79 advisable to forbid the marriage absolutely, a clausula irritans should be asked from the Holy See." 143. Only the Eoman Pontiff may abrogate the im- pedient and diriment impediments of ecclesiastical law ; nor may any one dispense from them unless such a power has been ceded to him either by common law or by reason of a special indult granted by the Holy See.^^ The Roman Pontiff, being the supreme legislator and the fountain-head of all power enjoyed by those who are in possession of ecclesiastical jurisdiction, can reserve to himself all legislative, judicial and coercive power as regards matrimonial impediments. Such reservation was actually effected by the new law as a safeguard for the welfare of the Church and of society. The foregoing canon furnishes an ideal case for the application of the prima regula iuris: "Omnis res per quascumque causas nascitur, per easdem dissolvitur." The right of the Holy See to such a reservation was always admitted by the leading canonists, nor was it ever questioned that the same supreme authority alone may authorize another to dispense in its name from a matrimonial impediment." 144. The canon referring to custom emphasizes still more this absolute control which the Holy See has over marriage impediments. Custom introducing a new impediment or one contrary to those already ex- isting is reprobated.^^ Formerly Canon Law accepted various impediments originating in custom, but it was always maintained that no custom or human law can abrogate an impediment of divine law. In the future "S. C. C, Eussiae (Archiep. Chiovieu.), 18 sept., 2 dee. 1628; 24 mart., 20 apr. 1629. =" Cod. Iub. Can., Can. 1040. " Weenz, op. cit., n. 63 ; Gaspaeri, op. cit, n. 303 ; De Smet, op. cit., n. 215; Benedict XIV, ep. encycl., "Magnae Nohis," 29 iun. 1748; Pius VI, const., "Auctnrem fldei," 28 aug. 1749 ; prop. 59, 60 ; S. C. de Prop. Fide, (S. P. pro Sin.-Tunkin. Occident.), 4 iul. 1831. " Cod. Iub. Can., Can. 1041. 80 The New Church Law on Matrimony. it will be well nigh impossible for custom to establish a universal impediment, not only on account of the reprobation expressed above, but mostly on account of the difficulty which will be experienced in getting the consent of the supreme ecclesiastical legislator. It can- not be presumed that in our times a universal custom, before attaining the force of law, would fail to come to the notice of the Holy See, which would either approve it expressly or reprobate it. 145. The new legislation discriminates between im- pediments of minor grades and those of major grades. Under the former are classified the following : 1. Collateral consanguinity in the third degree. 2. Collateral affinity in the second degree. 3. Public propriety in the second degree. 4. Spiritual relationship. 5. Crime arising from adultery combined with a promise to marry, or with an attempt to contract even a civil marriage.'*" All the other impediments belong to the class of the major grade." An extensive and individual treatment of these impediments will be presented later. The foregoing differentiation finds its practical application in the dispensations to which the attention of the reader is called in the pages that follow. IV. Dispensation from Matrimonial Impediments. (Canon 1043— Canon 1057.) 146. Dispensation is a relaxation of the law in some particular instances. Only the author of the law, or his successor, or his superior, or an individual author- '" Ordo servandus in S. Congregationibus, Tribunalibus, Officiis Eo- manae Curiae, 29 sept. 1908, Pars II, Normae peculiares, cap. VII, art. Ill, n. 19. ■" Cod. Iur. Can., Can. 1042. Matrimonial Impediments in General. 81 ized by either has the right to grant a dispensation.^* Ordinaries below the Roman Pontiff may not dispense from the general law of the Church, not even in a peculiar case, unless such power was given to them explicitly or implicitly, or unless recourse to the Holy See is difficult and grave harm is feared on account of delay. It is understood that, should these conditions be present , the Bishop will lift only those impediments from which the Holy See ordinarily dispenses.'' Thus, for instance, he will not remove an impediment arising from any degree of lineal or from the first degree of collateral consanguinity, and only in extreme cases will he dispense from lineal affinity in the first degree (pro- vided the marriage from which it arises has not been consummated), nor from crime alterutro vel utroque coniuge machinante, praesertim si casus sit puhlicus. 147. The Bishops and other Ordinaries of places may dispense from the diocesan laws ; but only in par- ticular instances and for a just cause from the laws of a Plenary or a Provincial Council. Should the Roman Pontiff deem it necessary to legislate for a certain ter- ritory, such particular law in that locality would be endowed with the force of a general law, in the sense that the Ordinaries of such places could not dispense from it in the absence of the conditions stated above as required for the dispensation from a general law."" Without an express authorization pastors have no power to relax either a general or a particular law."^ Every relaxation of an ecclesiastical law must be occa- sioned by a just and reasonable cause commensurate with the gravity of the law from which a dispensation is to be granted, otherwise a dispensation given by an ■" Op. cit., Can. 80. " Op. cit., Can. 81. " Op. cit.. Can. 82. " Op. cit., Can. 83. 82 The New Church Law on Matrimony. inferior is illicit and invalid. Should there be a doubt as to the sufficiency of the cause, the asking of the dis- pensation would be licit, and its granting both licit and valid.°^ The wording of the rescript bestowing the faculty to grant the dispensation must be interpreted strictly/^ 148. Since dispensations are generally given by means of rescripts which serve simultaneously as a proof, should the occasion require it, it is necessary that the reader should familiarize himself with the new law on this point. Excommunicati vitandi "* or person- aliter interdicti,^' or suspensi,"^ as well as persons whom a declaratory or a condemnatory sentence ex- communicates or interdicts or suspends cannot validly receive a dispensation from the Holy See, unless this fact is mentioned in the petition and in the rescript."* If the favor need not be bestowed through a third person (an executor), the effect follows as soon as the rescript is given; otherwise it is deferred until the authorized party executes it.°' Only those conditions are regarded as essential for the validity of a rescript which are introduced by the conditional conjunctions "if," "unless," and others belonging to the same category."' Eescripts are granted under the implicit condition "Si preces veritate nitantur." Should the causes stated in the petition be unfounded or imagi- nary the rescript is invalid, unless it is given "motu proprio," or contains a dispensation from a minor impediment. In the case of a "motu pro- prio" rescript the granted favor is sustained, " Op. cit., Can. 84. =■ Op. cit., Can. 85. •*0p. cit., Can. 2265, 52. " Op. cit., Can. 2275, n. 3. " Op. cit., Can. 2283. " Op. cit.. Can. 36. " Op. cit.. Can. 38. "' Op. cit., Can. 39. Matrimonial Impediments in General. 83 though a part of the truth was concealed by the peti- tioner, as long as the final or the only cause on which the petition was based was not false/" In the case of a dispensation from a minor impediment the rescript would be valid even if the whole truth should be con- cealed and an imaginary or even false reason substi- tuted as the causa motivaJ^ 149. A favor denied by one Sacred Congregation or Office of the Roman Curia cannot be granted validly by another Congregation or Office or by the Ordinary of the place (should he have the power), except with the assent of that Sacred Congregation or Office by which it was declined in the first instance ; the right of the Sacred Penitentiaria remaining intact/^ No indi- vidual should ask another Ordinary for a favor denied by his own, without mentioning the fact of refusal ; nor should the latter grant such a favor without having first informed himself of the reason by which the former was influenced when he refused the petition. In the same way a favor refused by the Vicar General and asked from the Bishop without mention of that fact is invalid, nor may a favor denied by the Bishop be asked from the Vicar General Avithout the consent of the Ordinary, even if the fact of the Bishop's refusal should be exposed in the petition.'^ 150. Provided the Ordinary is unmistakably certain as to the identity of the person to whom a favor is granted, and as to the nature of the favor, the rescript is not invalidated by an error that may have been com- mitted as regards the description of the nature of the concession, or as regards the name of the grantor or of the grantee or of the place of the latter 's residence.^^ '• Op. cit., Can. 45. " Op. cit., Can. 1054. " Op. cit., Can. 43. " Op. cit., Can. 44. " Op. cit.. Can. 47. 84 The New Church Law on Matrimony. Should the Apostolic See grant a rescript not necessi- tating an executor the recipient need not present it to the Bishop unless expressly ordered by the rescript to do so, or the nature of the concession obviously de- mands it, as, for example, when the favor regards a public matter, or the verification of certain conditions by the Bishop is required/^ The executor must observe the essential conditions as well as the substantial form laid down in the rescript.'" He may substitute another person for himself unless such privilege is expressly denied to him," or, unless he has been chosen industria personae (by virtue of some personal merit). V. The Power of the Bishops and Priests over Matri- monial Impediments. 151. The Ordinaries of places may dispense their own subjects in every place as well as all persons re- siding within the limits of their territory, not only from the form to be observed in the celebration of marriage, but also from every impediment of ecclesi- astical law, excepting those arising from the order of the holy priesthood and from lineal affinity, if, in the latter case, the marriage was consummated. This faculty may be used whether the impediments are public, occult or mtdtiple, provided scandal is removed and the customary conditions complied with, should the case demand a dispensation from the impediment of disparity of worship or of mixed religion. The con- ditions under which this extraordinary faculty may be used are clearly specified, namely: If urgent danger of death necessitates the adjustment of matters of con- science, and, should the case permit, the legitimation of offspring.'' " Op. cit., Can. 51. " Op. cit., Can. 55. " Op. cit., Can. 56. '" Cod. Iue. Can., Can. 1043. Matrimonial Impediments in General. 85 This is the most extensive faculty ever given to the Bishops by virtue of ordinary power in case of urgent danger of death. On February 20, 1888, the Congrega- tion of the Holy Office issued a decree whereby the Bishops were authorized to dispense from all public matrimonial impediments established by ecclesiastical law in order to provide for the relief of conscience in behalf of those individuals who contracted a civil mar- riage, or "vivunt in conciMnatu." ''^ The foregoing faculty was not ordinary but only delegated, with the privilege of subdelegation. The decree states distinctly that only aegroti and in gravissimo mortis periculo constituti may be benefited by this faculty. By virtue of the decree "iVe temere," art. VII, for similar rea- sons plus the legitimation of offspring imminente mortis periculo any priest could convalidate a civil marriage provided neither the Ordinary, nor the parish priest of the place, nor a priest delegated by either was accessible. Finally on August 15, 1909, the Sacred! Congregation of the Sacraments declared that a priest who according to the foregoing article of the decree "Ne temere" assists at a marriage is empowered to dispense from all the impediments mentioned in the de- cree on the Holy Office issued for the Bishops in 1888. The present decree is the final development of the foregoing. Its extensiveness is due to the fact that it eliminates many restrictions found in the former de- crees. They all show the unbounded mercy and solici- tude the Church entertains for those sinners who are on the verge of eternity. 152. The first condition is the urgent danger of death. The law fails to specify the particular cause from which such a danger must result in order that the faculty may become operative. Therefore any " New Collectanea, n. 1685. 86 The New Church Law on Matrimony. cause whatsoever will suffice, provided it may be qualified as urgens mortis periculum. A soldier in the first trenches, a person on board a submerging ship, an individual living in a high story of a building that is all ablaze from below affording little possibility of escape, and one living in a house which owing to a severe earthquake is falling to pieces and whose exit is barred, are as much in urgent danger of death in the sense of this canon as one who is critically ill owing to grave sickness, or as the result of an unsuccessful major operation. 153. Such danger may threaten either the party who labors under an impediment, or the one who is free from it. The Holy Office decided that this faculty may be used even if only the healthy party is directly bound by the impediment and the other, exposed to an urgent danger of death, wishes to adjust his matters of conscience.'" It is presumed in this case that both parties in question are Catholics. 154. But what is to be done under the same circum- stances if they are both laboring under an impediment, for instance, si monialis aegrotans in concubinatu viveret cum diacono bene valente? The Holy Office decided that ad consulendum conscientiae the Ordinary could even in that case dispense from all ecclesiastical impediments, excepting the two mentioned above. It is very questionable, however, whether the opinion of Gieran *^ can be upheld, namely, that this faculty may be used even in order "to soothe the conscience of the party who is not in danger of death." If both parties are Catholics it is hardly imaginable that the conscience of the dying person can remain "unsoothed" after the convalidation bf marriage and the legitimation of off- "" S. C. S. Off., 1 iul. 1891, in the new Collectanea, u. 1758. " 2'fte New Canon Law in its practical aspects, p. 151 ; Philadelphia, 1918. Matrimonial Impediments in General. 87 spring. In such a case his contention might hold. But suppose the dying party is a non-Catholic? In that case, if he should decline to become a convert, the Ordi- nary could go no further unless he possessed the faculty of granting a sanatio in radice. One should not lose sight of the fact that the purpose of this extra- ordinary faculty is to benefit the dying person (whose salvation the Church wants to secure) directly, the healthy person only indirectly. 155. The second condition in the absence of which the ordinary may not avail himself of this faculty is the very condition which occasioned its granting, namely, the necessity of adjusting matters of con- science, and, should the case permit it, of legitimating the offspring. It would be a mistake to imagine that the two reasons must always be combined in one and the same case, for the first can easily be imagined with- out the second but not vice versa. The necessity of settling matters of conscience affords in itself a suf- ficient ground for the Bishop to act and to avail him- self of the faculty bestowed by this canon. A civil marriage, a concubinage not legitimatized even by the civil law, the wish to repair a wrong done to a woman or to fulfil the promise of marriage under which she was seduced, the intention to restore the good name of the accomplice or the desire to avoid grave scandal or a proximate occasion of sin are some of the reasons one'could enumerate as necessitating an adjustment of matters of conscience and in themselves sufficient to justify the Ordinary in resorting to this faculty. In some instances the validation of marriage may be desired for the sake of the children born out of wed- lock. Though such might actually be the primary in- tention, the secondary, namely, the settling of matters of conscience, is implicitly included in it. It would 88 The New Church Laiv on Matrimony. geem that the word "and" here is not to be regarded as disjunctive but copulative, as connecting two things existing in the same case, namely, the adjustment of matters of conscience and the legitimation of offspring. The faculty may be used in a case where the first con- dition occurs without the second, but it is hard to se(! how the second condition could be verified without of- fering some relief to the conscience of the party who is in urgent danger of death. 156. Should the validation of marriage take place, the natural illegitimate offspring become ipso facto legitimatized ; not so, however, the children born of an adulterous or of a sacrilegious union.*^ Even if such a union should be validated, in the former instance after the death of one of the consorts and in the latter by means of a dispensation, the children already born of a sacrilegious or adulterous union would still remain illegitimate. Take the case where a monialis aeffrotans in matrimonio civili viveret cum diacono bene valente. The Ordinary by virtue of this faculty could grant the necessary dispensation and the marriage could be vali- dated, but it would not benefit the children already born of that union. Such children can be legitimatized only by a special mandate of the Eoman Pontiff.'^ 157. The faculty contained in this canon is granted to the Ordinaries of places. Besides the Eoman Pontiff, under the name Ordinary in this connection are to be included: All residential Bishops, Ahhas or Praelatus nullius, and their Vicar General, Adminis- trator, Vicar and Prefect Apostolic.'* They may ex- ercise this faculty in behalf 'of their subjects wherever they may be, or in favor of all persons who hie et nunc " Cod. Iub. Can., Can. 1051. " Gasparm, op. cit., n. 1123 ; Woutebs, op. cit., p. 68 ; S. C. S. Off., 8 iul. 1903, in the new Collectanea, u. 2171; S. Poenit., 1 iul. 1859. ^' Cod. Iur. Can., Can. 198. Matrimonial Impediments in General. 89 actually reside in their diocese. Thus the canon in- vests the Bishop with a personal jurisdiction over his own subjects and brings under it also persons tarrying within the limits of his diocese but not possessing tdther a domicile or a quasi-domicile therein. There- fore he may resort to this faculty even when peregrini or vagi are involved. In order to settle matters of conscience of a person who is in urgent danger of death outside his domicile or quasi-domicile, either his own Bishop or the Ordinary of the place may avail himself of this faculty. 158. The first dispensation which this canon em- powers the Ordinary to grant, regards the non-observ- ance of some customary formalities prescribed for marriage. {Forma in matrimonii celebratione serv- anda.) By this form is meant the presence of the Ordinary or of the parish priest and two Avitnesses. In other words, he can dispense from the presence of the two Avitnesses. Owing to conditions prevailing in some localities of China a petition requesting a similar privi- lege was sent to Rome by the Ordinaries of that coun- try, and on July 28, 1908, the Holy See acceded to their wishes.'^ As far as the impediments are concerned all those that were introduced by the Church law fall within the scope of this faculty, be they diriment or impedient, public or occult or multiple. The exempted impedi- ments arise from the Order of the Priesthood and from lineal affinity, provided in the latter instance the mar- riage has been consummated. Should such marriage not be consummated the Ordinary under such circum- stances could dispense even from the impediment of lineal affinity. Since the law fails to discriminate as regards the degree, it is legitimate to infer that the "• KuBELBECK, The Sacred Penitentiaria, p. 62 ; at the Catholic Uni- versity of America, Washington, D. C, 1918. 90 The New Church Law on Matrimony. expression "ex affinitate in linea recta" comprehends any degree of the direct line, if the marriage occasion- ing the affinity hae not been consummated. Thus, for instance, the Bishop could grant a dispensation by virtue of which one could marry one 's daughter-in-law or mother-in-law, or step-daughter or step-mother. He could also dispense from the impediment arising from the Order of Diaconate or Subdiaconate. 159. Even if all the above explained conditions should be verified in a particular case, the Bishop be- fore actually applying the necessary dispensation must take heed to remove the scandal. His prudence will suggest the various means whereby such a purpose can be accomplished. If the parties show their repentance in the presence of witnesses, or if they are willing to do public penance, or if they give a sincere promise that as soon as the danger of death is removed they will leave the present place where their scandalous re- lations are known, and will go to a region where they are unknown, these and other precautionary measures, dependent on circumstances, would suffice to satisfy the obligation the words "remoto scandalo" impose. If the Bishop should find the removal of total scandal a practical impossibility, its partial removal linked with the parties ' promise, or desire, or at least willing- ness to do more will give him enough ground to grant the dispensation. He can proceed even if the scandal is irreparable, but not if the parties out of mere obstinacy refuse to remove it when the difficulties to be confronted are inconsiderable. This treatment is to be accorded to them not as if the validity of the dispensa- tion were conditioned on the words "remoto scandalo/' but on account of their frame of mind. The least the Church exacts imder such circumstances is compunc- tion of heart for the wrong done and the scandal ere- Matrimonial Impediments in General. 91 ated, which compunction cannot be conceived unless accompanied with readiness to embrace a little humili- ation or inconvenience connected with the reparation of the given scandal. 160. Should the case require a dispensation from the impediment of disparity of worship or of mixed religion, the customary cautiones must be subscribed to, before the Ordinary proceeds any further in his task of adjusting the persons' matters of conscience. A thorough treatment of these cautiones is found in an- other part of this work.'" The importance of exacting and of giving these guarantees can be inferred from the fact that as recently as July 21, 1912, the Holy Office declared null and void all marriages in which a dispensation from the impediment of disparity of wor- ship was obtained without the exaction or after the refusal of such precautionary conditions." We are in- clined to think that, under such circumstances, the spirit of the Church would permit the Ordinary to make this faculty operative, at least quoad validitatem; even in ease the cautiones are refused by the infidel party, as long as the Catholic party constituted in urgent danger of death is willing to do all in his power to comply with them should he recover. This inference is legitimate from the fact that according to the new legis- lation a rescript is not invalidated (though its use may be illicit) unless preceded by the conditional conjunc- tion "if," "unless," "except," "provided" or any other belonging to the same class.** What course should the Ordinary take if he meets with an absolute refusal even on the part of the Catholic? It is hard to see how such an individual could be considered well disposed to have his marriage validated and his matters of con- '" See this work under n. 191 ff. "' Acta Ap. Sedis, vol. IV, p. 443. '■ Cod. Iur. Can., Can. 39. 92 The New Church Laiv on Matrimony. science adjusted, and these are the main reasons for the granting of the faculty expressed in this canon. 161. Under the circumstances described above; but exclusively in a case where no recourse can be had even to the Ordinary of the place, the same extensive faculty to dispense is enjoyed by the pastor, and by any priest who assists at marriage according to the norm of canon 1098, n. 2, and even by a confessor, the latter being restricted to the internal forum and in the act of sacra- mental confession.*" In order that the three classes of priests enumerated in this canon may validly apply the above-explained faculty it is necessary that the circumstances should be the same as stated before, namely, an urgent danger of death, the need to settle matters of conscience, and, should the case permit, the legitimation of offspring. The case must be such that neither the proper Bishop (by virtue of domicile or quasi-domicile, or one month's residence) of either party in question, nor even the Ordinary of the place in which they tarry hie et nunc can be approached. This does not imply an absolute impossibility. It rather refers to the delay which such a recourse would inevitably necessitate, and which would expose the party concerned to the danger of dying before the affairs of his conscience could be settled. The priests mentioned in the foregoing canon need not resort to such extraordinary measures as the telephone or a telegram even if communication with the Bishop could thereby be established."" 162. The pastor has this faculty by virtue of his office, which fact carries Avith it the right to delegate the same faculty to others. Besides the pastor this faculty is enjoyed by any priest who, in danger of " Op. cit., Can. 1044. °° Litt. eneycl. Seer. Stat., 10 dee. 1891 ; in the new Collectanea, n. 1775. Matrimonial Impediments in General. 93 death, should assist at marriage when neither Ihe Ordinary, nor the pastor, nor a priest delegated by either can be reached. The qualifying adjective "alius" permits any priest to resort to this faculty, the other conditions being verified, even if he should be suspended, or excommunicated, or deprived of all juris- diction." Under the same circumstances a confessor is in- vested with the same power as the Ordinary, but he may exercise it only in the tribunal of penance."- The difference between the power granted to the first two and to the third is apparent. The pastor and the sacerdos qui matrimonio ad norman can. 1098, n. 2, assistit may make use of this faculty either outside the tribunal of penance, or in it; the confessor, as a con- ditio sine qua non, is limited to the sacramental con- fession. Should he dispense in foro interna from an occult impediment which subsequently becomes public, another dispensation must be obtained for the same pro foro externo."^ 163. Should the pastor or the other priest men- tioned in this canon (not the confessor) grant dispen- sation for the external forum, he is immediately to bring this fact to the knowledge of the Ordinary of ■'he place, and the dispensation should be recorded in the Matrimonial Register."* By the Ordinary of the place is understood the head of the diocese within whose territory such a dispensn- tion is given. Dispensations granted pro foro externo are public acts and as such should be recorded in the " De Smet, op. cit., n. 68; Vermebrsch, "Netemere," n. 74; Woutbrs, op. cit., n. 68; see this work, n. 508. "S. C. S. Off., litt. encycl., 1 mart. 1889; 23 apr. 1890 ad 2-4; S. C. de Sacr., Parmen. et aliarwm, 14 mail 1909. "' Benedict XIV, De Synodo Vioecesana, lib. IX, c. II, n. I. " Cod. Iur. Can., Can. 1045. 94 The New Church Law on Matrimony. Matrimonial Register.'^ Dispensation given by the con- fessor pro foro interno is a secret act, needing no recording, for it cannot be revealed without breaking the sacramental seal. It is for this reason that the new law does not oblige a confessor to notify the Ordinary of the place of a dispensation he has granted in the tribunal of Penance. 164. The Ordinaries of places may dispense from all impediments mentioned in canon 1043, heeding the clause placed at its end, whenever an impediment is detected after all the preparations have been made for the nuptials, and the marriage, Avlthout the probable danger of grave evil, cannot be deferred until a dis- pensation from the Holy See can be obtained. This faculty holds good even for the validation of a con- tracted marriage, should there be the same danger in delay, with no time to have recourse to the Holy See. Under the same circumstances the same faculty is en- joyed by all mentioned in canon 1044, but only in occult cases in which even the Ordinary of the place cannot be reached, or can be reached only with danger of vio- lation of the sacramental secret.'" This canon legislates for an emergency styled in the past "casus perplexus." Sanchez was the first advo- cate of the opinion that in cases in which the circum- stances specified in this canon are verified the Bishops have an ordinary power to dispense provided the im- pediment is occult." This opinion was subsequently embraced by St. Alphonsus, and after a time was adopted by all leading canonists."^ Though all kinds of reasons were contrived for its vindication and "S. C. de Prop. Fide, instr. (ad Archiep. Hiberniae), 25 iul. 1791. »• Cod. Iur. Can., Can. 1045. ■" Op. cit., loc. eit., lib. VII, disp. 40, n. 5. "' EossET, op cit., loc. cit., n. 2389 flE ; Gasparei, op. cit., n. 409 ; Lbet- NBR, op. cit., p. 504 ff.; Scherbr, loc. cit., p. 640; WiaiNZ, op. cit., n. 619; Db Smet, op. cit., n. 238 ; Feije, op. cit., n. 635. Matrimonial Impediments in General. 95 though, some maintain that even the Holy Office sanc- tioned it indirectly,'" it remained doubtful until the present legislation not only confirmed it by express approbation but augmented its scope by extending it to all impediments, whether occult, public, or multiple, diriment or impedient, provided they are of ecclesi- astical origin, excepting only two, already referred to above. It must be borne in mind that this canon does not authorize a dispensation from the form of mar- riage. The words "cum iam omnia parata sunt ad nuptias" do not necessarily convey the idea that before the Ordi- nary may resort to this faculty the parties must have already crossed the threshold of the church for the purpose of contracting marriage. It suffices that the invitations have been issued and all arrangements have been made, even if the impediment should be discovered a few days before the wedding, as long as the time allotted is not sufficint to permit recourse either to the Holy See or to one possessing delegated power. 165. If the above-stated conditions exist in a par- ticular case, the probabile gravis mali periculum fol- lows almost inevitably. Therefore the Ordinary will have reason to dispense in most of such instances, for the probable danger of grave evil will be present in almost every case, should the marriage not be cele- brated on the day appointed. The Bishop may dis- pense even if the parties should purposely postpone the revelation of the impediment to the very last minute, and should thus be found in mala fide. He may furthermore exercise the same faculty even in mar- riages already contracted (invalidly), should a similar danger be present in delay, and should time not permit recourse either to the Holy See or to its delegate."" " Wernz, op. cit., n. 619 note 83. "° S. C. S. Off., 6 iul. 1898, in the new Collectanea, n. 2007. 96 The New Church Law on Matrimony. Some conditions which the canonists laid down in the past in order that the Bishop may exercise the same faculty for validation of marriages invalidly con- tracted, are eliminated by the new legislation. Should the impediment have been discovered after the mar- riage was entered into, or should a delay caused by re- course to the Holy See be likely to occasion scandal, or incontinence, when there is no possibility of separation a toro et mensa without great inconvenience to the parties, no one would deny that such circumstances would not only justify but even make imperative the granting of a dispensation.'"^ 166. Should the circumstances be such as described above, it being immaterial whether marriages to be con- tracted or already contracted are involved, and should recourse to the Ordinary be impossible on account of the danger in delay or on account of the danger of vio- lating the secret, then, the pastor, or any priest (in the absence of the Ordinary, or of the pastor, or of a dele- gate of either) or even a confessor may grant the neces- sary dispensation, provided the case is occult. The dif- ference between the faculties enjoyed by the Bishop and those by the three classes of priests mentioned above is apparent. The former may dispense from all im- pediments of ecclesiastical law (excepting the two already so often emphasized) regardless of the nature of the case, even if it be public ; the latter may dispense from the same impediments, but only in occult cases. An occult case is not equivalent to an occult impedi- ment, nor must the canon be interpreted in the sense that unless the impediment is occult, it is withdrawn from the jurisdiction of these three classes of priests. Be the impediment public or occult, as long as it is a secret case, the priests in question may dispense from 'Wernz, op. cit., n. 618; Feije, op. cit., n. 633. Matrimonial Impediments in General. 97 it. It was necessary that the Codex should make use of the expression "pro casibus occultis" for in the new legislation the publicity or occultness of an impedi- ment is not determined by the fact whether it is kno-wn or unknowm to others, but by the fact whether it can or cannot be proved in the external forum."^ Let us take a hypothetical case in which the invalidity of a mar- riage is due to an impediment arising from collateral consanguinity in the second degree. Formerly this by its nature was a public impediment; consequently a public case in the old legislation, but not so in the ijew. Should only the contracting parties know of the exist- ence of the impediment, the new law would consider the case an occult one and any one of the priests be- longing to the three classes mentioned would be auth- orized to grant the necessary dispensation, since this canon gives them the right to dispense from all impedi- ments of ecclesiastical origin except those arising from the Order of Holy Priesthood and, should the marriage have been consummated, from lineal affinity. 167. When a case is to be regarded as public or as occult is a question whose solution is yet pending. In the past the Sacred Penitentiaria made the publicness or the occultness of an impediment dependent on the size of the village or the city, and on the number and disposition of the individuals who were aware of its presence."^ Though the question was never solved with mathematical precision, it was a generally ac- cepted theory that if in a village only six and in a city only eight persons were aware of the impediment, it could still be considered occult. It would, perhaps, not be out of place to apply to public and occult cases the same principles which formerly decided the publicness or the occultness of an impediment. >°" Cod. Iub. Can., Can. 1037. "' Gaspabri, op. cit., a. 252. 98 The New Church Law on Matrimony. 168. Unless the rescript of the Sacred Penitentiaria orders otherwise, a dispensation granted in the internal non-sacramental forum from an occult impediment is to be carefully recorded in the register kept in the secret archives of the Curia in accordance with the in- structions contained in canon 379, nor would the case demand another dispensation should such an impedi- ment become public subsequently, unless the dispensa- tion had been given only for the internal sacramental forum."* The Church law distinguishes three kinds of fora (forums). The external forum is an ecclesiastical court in which public matters concerning the rights or the temporal and spiritual transactions of Christians are adjudicated. The evidence of this court is limited to things that come to light either by testimony or by public proofs. The internal forum is divided into sacramental and non-sacramental. The former is con- fined to sins as confessed by the penitent, the latter handles all affairs pertaining to the spiritual welfare of the individual and the society. The evidence of the external forum consists of the exonerating or self-ac- cusing declaration of the individual and of those who testify for or against his cause. The internal forum decides on the testimony of the individual alone."'' With this explanation in our possession the forego- ing canon should create no difficulty. The Church in order to save the contracting parties from disgrace, or to lobviate scandal, takes all these precautions in case of occult impediments. For this reason it insists on recording the marriage in which a dispensation was obtained from the non-sacramental forum, in a register used especially for that purpose, and kept under lock '"< Cod. Idr. Can., Can. 1047. '"REiPFENSTf'L. ov: cit.. TTT, 5, n. 348; Benedictus XIV, De Synodo Dioecesana, lib. XIII, c. XXII, n. 8 ; D'Annibale, op. cit., vol. I, n. 25. Matrimonial Impediments in General. 99 and key in the diocesan archivfs."' A secret com- municated in the non-sacramental forum obliges, though its divulgation M^ould not involve violationem sigilli sacramentalis. If such a secret should become public it ceases to bind. Consequently, the secret being divulged, the dispensation granted privily on account of it will of itself become public. Should the dispensa- tion be given in the sacramental forum the secret would continue to oblige notwithstanding the fact that it be- came public. For this reason, to justify the contract- ing parties in the eyes of the public and to prevent scandal, a dispensation for the external forum must be procured when the knowledge of an impediment dis- pensed from in the internal sacramental forum alone becomes the property of others. 169. Should in a particular case a petition for a dispensation be dispatched to the Holy See, the Ordi- naries, even if they should possess the faculties re- quired by the case, nmst refrain from making use of them, except in accordance with the norm laid down in canon, 204, §2."" Sometimes it may happen that the parish priest or the party laboring under an impediment forwards a petition to the Holy See for a dispensation. In such instances the Ordinary, though he might have poM'er to dispense from the impediment in question, shoald abstain from making use of it, unless there is danger in delaying until a response comes from the Holy See. A dispensation granted under such circumstances must immediately be brought to the knowledge of the Holy see.^"' This canon does not mean to suspend the faculty of the Bishop in a case in which the Holy See has been petitioned to dispense. A dispensation granted by him '»• Cod. Iue. Can., Can. 379. '" Op. cH., Can. 1048. '" Op. cit., Can. 204, ^2. 100 The New Church Law on Matrimony. would be valid though the grave and urgent cause de- scribed above be absent. He would, however, be guilty of presumption, and would act illicitly, for non decet ut rei ad superiorem delatae se immisceat inferior. If he is obliged to notify the Holy See should he dispense in grave and urgent necessity, a fortiori must he do so should the dispensation be given sine gravi urgentique causa. 170. Unless the rescript ordains otherwise all per- sons having a general indult to dispense from a certain impediment may dispense from the same in prospective marriages or in those already contracted, even if the impediment be multiple."" This canon embodies a modification in what was formerly called facultas cumulandi. By virtue of the present discipline if a missionary possesses the general indult to dispense from the impediment of collateral consanguinity up to the second degree of the equal line inclusively, he may dispense also in cases in which the same impediment is multiplex, when, for instance, the same parties are related in the second and also in the third degree of consanguinity."" 171. Persons having a general indult to dispense from several impediments of different species, either diriment or impedient, are authorized to lift such im- pediments even if they should be public, or occur in one and the same case."^ For instance, if a person in possession of a general indult may dispense from the impediments of affinity, of disparity of worship, and of crime, by virtue of the same indult he may dispense from the same three impediments even if they should occur in one and the same case. Formerly this was not '»" Op. cit., Can. 1049, §1. "°S. C. S. Off., 19 iun. 1875; (Mission. Trichinopol.), 2 apr. 1892; S. Poenit., 20 apr. 1883. ■" Cod. Iur. Can., Can. 1049, §2. Matrimonial Impediments in General. 101 possible unless one received the so-called faculties for cumulating. 172. If together with one or several public impedi- ments which one can remove by virtue of a general indult, one finds that in the same case there is another impediment from which he has no power to dispense, the Holy See must lift all of them. If, however, the impediment or impediments from which one can dis- pense were discovered only after the Holy See has already been petitioned for a dispensation, then one is free to use his faculties."' The tenor of this canon shows that it legislates for public impediments. Should there be three public impediments in a case and should the Ordinary have power to dispense only from two, all three must be removed by the Holy See. If, however, the two impediments from which the Ordinary can dis- pense were not discovered until after the Holy See has already been petitioned for the removal of the third, the Ordinary is free to remove them."' 173. The offspring, except adulterine and sacri- legious, born or conceived by the parties in question is legitimated when a dispensation is granted from a diri- ment impediment. Such effect follows whether the dis- pensation is given by virtue of ordinary power, or by virtue of power delegated by means of a general indult, not by rescript given for particular cases."* Those children are in need of legitimation who de- scend from parents whose marriage was neither valid nor putative. Illegitimate children may be either spurious or natural according as the parents, at the time the child was conceived or born, or at any time during the period of gestation, were or were not labor- "= Cod. Iur. Can., Can. 1050. '"S. C. de Prop. Fide, litt. (ad Deleg. Ap. Syriae), 10 maii, 1887. "'Cod. Tub. Can., Can. 1051; S. C. S. Off., 12 dec. 1748 ad 1; 8 iul. 1903, litt., 11 dec. 1906. 102 The New Church Laiv on Matrimony. ing under a diriment impediment. There are four classes of spurious children, namely, adulterine (born of adulterous union), sacrilegious (born of a union in which one or both parties were bound by solemn re- ligious vows, or the father was a cleric in major Orders), incestuous (born of a union in which the parties labored under the impediment of consanguinity or affinity), and nefarious (the child of a father and his daughter, or of any direct descendant and ascend- ant). It is certain that the foregoing canon legislates for the natural children. The question might arise to what extent does it affect the spurious children? It expressly exempts the two classes, namely, the adul- terine and the sacrilegious offspring. What are we to say about incestuous children and nefarioas children? It would seem that an incestuous offspring, if its par- ents are related within those degrees of consanguinity or affinity from which the Church dispenses, is meant to be benefited by this new law. Not so, however, as regards nefarious children for their parents can en- tertain no hope of a dispensation. The foregoing canon therefore implies that a dispensation given by virtue of ordinary power, or by virtue of power dele- gated by means of a general indult effects an auto- matic legitimation of the offspring if one excludes those above mentioned. Should the faculty to dispense be obtained by means of a rescript for a particular case, no such effect would follow unless a clause inserted in the same rescript would mal^e a special provision for it. 174. A dispensation given from an impediment of consanguinity or affinity in a determined degree retains its force even if a mistake crept into the petition or concession as regards the degree, provided the degree really existing is inferior. The same is to be said when Matrimonial Impediments in General. 103 another impediment of the same species but of an equal or inferior degree was omitted."^ The first part of this canon is founded on the prin- ciple that a dispensation granted from a higher degree includes the lower degree/^" but not vice versa. Let us suppose a case with an impediment of consanguinity in the third degree. Should either the petition or the con- cession, or both, speak of the second degree, the re- script would not be invalidated thereby. Nor would it be vitiated should a dispensation be asked from the second degree of simple consanguinity, whereas in reality one would have to deal with an impediment of multiple consanguinity in the same degree or in the second and the third degree. 175. When the Holy See grants a dispensation from a ratified non-consummated marriage, or gives per- mission to contract a new marriage on the ground of the presumed death of the other consort, it intends to remove simultaneously the impediment of crime aris- ing from adultery combined with a promise of, or with an attempt at marriage, but not so when the same im- pediment originates from the causes mentioned in canon 1075 under numbers 2 and 3."' There are four various causes which may give rise to the impediment of crime. This canon legislates for the first two, namely, when it arises from adultery com- bined with a promise of marriage, or from adultery combined with an attempt at marriage. Should A. marry B., and should he contract such an impediment with C, he would not require a dispensation to marry her in case his first marriage is dissolved as ratum non consummatum. Again, should A. receive permission to "' Cod. Iur. Can., Can. 1052. "' Eeg. 35 and 53, De regulis iuris, in VI" ; S. Pius Y, const. "Sanctvs- sivius." 20 aug. 1506, §1. "'Cod. Iur. Can., Can. 1053; see this work, n. 308 ff. and 311 ff. 104 The New Church Law on Matrimony. remarry oh praesumptam coniugis mortem, he could contract marriage with B. notwithstanding the impedi- ment of crime that might exist between them for either of the two causes mentioned above. The discipline embodied in this canon was handed down by the Con- gregation of the Sacraments on June 3, 1912, and is now extended to the universal Church. 176. Dispensation from a minor impediment is al- ways valid. It is not vitiated either on account of sup- pression of truth (suhreptio), or of assertion of false- hood (obreptio) ,^^^ even if the only final cause alleged be false."' The meaning of this canon can be made clearer by means of an example. Let us suppose that the only cause advanced in the supplica for dispensa- tion is aetas superadulta. Though the petition should be faulty on account of obreption, and though the parties should be in bad faith (having knowingly stated a false cause), the rescript would be valid nevertheless if the impediment which it removes belongs to a minor grade."" 177. Dispensations from public impediments com- mitted to the care of the Ordinary of the petitioners, should be executed by the Bishop who gave the testi- monial letters or transmitted the petition to the Holy See. This duty is incumbent on him even if the peti- tioners, by the time the dispensation is to be executed, abandoned the domicile or quasi-domicile they had in his diocese and, with no intention of returning, estab- lished themselves in another diocese. In such case he must bring the dispensation to the knowledge of the Ordinary in whose diocese the parties in question in- '" Cod. Ito. Can., Can. 42. "" Op. cit., Can. 1054 ; Ordo servandus m S. Congr., Trib., OfficUs, Bom. Curiae, 29 sept. 1908, Pars II, Normae peculiaree, cap. VII, art. Ill, n. 21. ■*■ Acta Ap. Sedis, vol. 1, p. 90. Matrimonial Impediments in General. 105 tend to contract marriage."^ This canon legislates for dispensation granted by the Holy See in forma com- missoria. Such dispensations do not take effect until they are actually executed by the person to whom such a task was entrusted. Should a Bishop send a petition for a dispensation to the Holy See, his task is not com- pleted until the granted favor is actually conferred by means of execution. Should he be commissioned as ex- ecutor, he retains his jurisdiction over the parties for this one case even if they moved into another diocese. If he should be constrained to execute the rescript in another diocese, the Ordinary of that place should be notified of the nature of this dispensation. It is to be noted that such an executor, whether he be a Bishop or a priest, is implicitly vested Avith the power to ab- solve from any ecclesiastical penalties or censures whose removal is absolutely necessary in order that the persons may be benefited by the dispensation.^^^ Should the person in question be an excommunicatus vitandus, or personaliter interdictus, or one whom a declaratory or a condemnatory sentence excommuni- cates or interdicts, the executor could not apply the dis- pensation validly unless a special clause inserted in the rescript expressly authorized him to absolve from such severe penalties. Persons thus branded cannot be the recipients of a favor unless the rescript takes cognizance of their censure.'" 178. Without an express permission given by the Holy See the Ordinaries of places or their officials are forbidden to exact any fees for dispensations granted to those who are not poor except the slight amount re- quired to defray the expenses of the chancery. All "■ Cod. Iuh. Can., Can. 1055. '"Op. cit., Can. 66, §3; S. Poenit., 2 iul. 1891; CoD. lUR. Can., Can. 200, §1. "'Op. cit. Can. 36; Can. 2265, *2; Can. 2275, n. 3. 106 The New Church Laiv on Matrimony. contrary customs are reprobated, and the Bishops are bound to restitution should they receive any other fees/" The history of ecclesiastical taxes is rather lengthy and it records several regrettable abuses committed by individuals. These abuses the Church tried to remedy by various repressive measures. The earliest document containing a tax list dates from the time of Benedict XII. Already the Council of Con- stance had found it necessary to mete out punishment against those who trafficked with spiritual things. Pius II decreed that scribes accepting more than the law allowed should be removed from their office, and Inno- cent VII, besides confirming the foregoing punishment, threatened them with excommunication reserved to the Holy See. In spite of such drastic measures the abuses continued, and the subsequent pontiffs, especially Alexander VI, Julius II, and Leo X, were constrained to have recourse to repeated legislation intended to check this mercenary tendency regarding things spir- itual. The Council of Trent decreed that under certain circumstances the dispensation should be given gratis."^ Innocent XI on October 1, 1678, regulated the fees and permitted moderate charges for matrimonial dispensations, which alms were to be used for pious purposes. The Sacred Congregation of the Council under Leo XIII, modified the Taxa Innocentiana on June 10, 1896, and allowed the provincial councils to regulate the taxes according to the customs prevailing in the different localities. The tax-list adopted by such councils required the approbation of the Holy See be- fore it could become operative. This decree of the Sacred Congregation is embodied in the new Codex.^^^ "' Cod. Iue. Can., Can. 1056. "' Sess. XXIV, cap. V. De reformatione matrimonii. '» Cod. Iub. Can., Can. 1507. Matrimonial Impediments in General. 107 179. Taxes are not to be confounded with compo- nenda. They both represent money received in ex- change for granted favors, but while the purpose of the taxes is to defray the expenses of the chancery, the componenda are used for pious works, and assume thereby a penal character, for they may be looked upon as alms calculated to make partial reparation for the transgression of the law of the Church. The words of this canon "modica praestatio" refer to the postage and other actual expense the chancery incurs in connection with a particular dispensation. From the poor even this amount may not be exacted. Should the Ordinaries wish to retain the privilege of demanding some componenda as was customary under the former discipline, they must obtain a special per- mission from the Holy See. The new law abrogates all previous customs to the contrary, and restitution must be made by all who disregard it by collecting a compen- sation beyond what the present canon authorizes. 180. Persons dispensing by virtue of power dele- gated by the Holy See must expressly mention the pontifical indult when they make use of the given faculty.'" Failure to comply with this provision in the former discipline, as a rule, invalidated the dispensa- tion.^^' Under the same circumstances according to the new legislation the dispensation would be illicit but valid. The purpose of this canon is to protect the rights of the superior. It has already been stated that a rescript is gener- ally given with the tacit understanding that the causes expressed in the petition are based on truth. The ques- tion might arise: When must such causes conform to "' Op. cit.. Can. 1057. '^Benedict. XIA^, ep. "Ad tms," 8 aug. 1748; S. C. S. Off. (S. Ludo- vici), 15 iun. 1875; 12 apr. 1899; S. C. de Prop. Fide, litt. (ad Vic. Ap. Myssur.), 3 iun. 1853; instr. (ad Vic. Ap. Indiar. Orient.), 8 sept. 1869, n.'53. 108 The New Church Law on Matrimony. the truth? The new law distinguishes whether one deals with a rescript which needs an executor, or with one that does not stand in need of being executed/^^ In the former supposition it will be necessary that the cause expressed in the petition and on the ground of which the favor in question was granted be true at the time the rescript is executed. In that hypothesis the rescript will be valid even if the advanced cause was false at the time the petition was dispatched. In the latter case the causes must be true at the time the favor was granted, otherwise the rescript is null and void, unless it is actuated "Motu proprio" "° or the favor it bestows is a dispensation from an impediment of minor grade."^ "" Cod. Idb. Can., Can. 41. "" See this work, n. 148. '" See this work, n. 176. CHAPTER V. Impedient Impediments. (Canon 1058— Canon 1066.) I. Impediment of Simple Voivs. 181. Marriage is prohibited to those who take the simple vow of virginity, of perfect chastity or of celi- bacy; like-wise to those who vow to receive Holy Orders, or to embrace the religious state. A simple vow does not invalidate marriage, unless the Holy See endowed it with such a force.^ Vow of virginity is a deliberate promise made to God by virtue of which one imposes on oneself a voluntary obligation to preserve one's body intact from acts which violate its integrity, or which are instrumental to primum opus carnale consummatum. Persons bound by such a vow would contract marriage validly but illicitly. The reason for the first lies in the fact that the Church has never bestowed an irritant clause on the vow of virginity. The marriage would be illicit because such a step would expose the person to the danger of violating the vow, cum altera coniuqe postu- lante dehitum reddere tenetur. It would, furthermore, imply the intention to consummate marriage, which is equivalent to a formal violation of the vow. In certain instances a marriage "wdth such a vow would be not only valid but also licit, namely, (1) if both parties mutually vowed chastity; (2) if the one bound by the vow of chastity is determined to refrain from asking the dehitum, and God reveals to him that > Cod. Iub. Can., Can. 1058. 109 110 The New Church Law on Matrimony. the other party has the same determination; (3) if the former has a firm resolution not to consummate mar- riage but to enter religion within a reasonable time. In this last case he would sin gravely if he neglected to inform the other party of such future intention. Only before the first opus carnale is consummated does the vow of virginity deprive one of the right to ask the debitum, though it does not free one from rendering it. 182. The vow of perfect chastity implies abstinence from every carnal gratification whether external or internal. The principles explained above in connec- tion with the vow of virginity are to be applied also to the vow of perfect chastity.^ The vow of celibacy is violated only by actual mar- riage but not by a sin of the flesh. After one has con- tracted marriage its use is perfectly licit. Some persons do not possess a clear idea of the dif- ference existing among the three foregoing vows. In such case the intention with which one meant to bind himself, or the obligation one meant to assume, should be the determinants as to whether one took the vow of celibacy, or of virginity, or of chastity. 183. A person who contracts marriage places him- self in the moral impossibility of fulfilling the vow whereby he obliged himself to receive Holy Orders. But under the circumstances he is not bound either to enter religion or to abstain from asking the marriage debt. Only in few and extraordinary instances does the obligation to receive Holy Orders revive. Such would be the case if the wife should lose her right to dehitum on account of having taken a vow of chastity.^ If a person made a simple vow to embrace the re- ligious state, the marriage he would contract would be ^ Gaspaem, op. cit., n. 438 ; Weenz, op. cit., n. 566 ; Feije, op. cit., n. 559; De Smbt, op. cit., n. 247; De Becsker, op. cit., p. 246. ' Gasparei, op. cit., n. 440. Impediment of Simple Vows. Ill valid but gravely illicit and he would have to abstain from its use. He may not ask for the marriage debt, nor is he permitted to render it, but should avail him- self, if possible, of the earliest opportunity to fulfill his vow within a reasonable time without having consum- mated the marriage. Should he consummate it without having been dispensed from his vow, he would sin gravely but the subsequent use of marriage would be licit. To form an idea how the foregoing five vows may affect the dehitum coniugale the reader is referred to the moralists.'' 184. The Holy See has reserved to itself the right to dispense from private vows, whether they regard perfect and perpetual chastity, or the embracing of a religious order of solemn vows, provided both were made absolutely and after the completion of the eighteenth year.' Vows that are not reserved may be commuted or dispensed from for a just cause (if such a dispensation does not violate the right of another) by the Ordinary of the place or by the Superior for clerics who are exempted, or by a special delegate of the Holy See." The vows here considered are simple vows which con- stitute only a prohibitive impediment to marriage,^ un- less the Holy See ordains otherwise in particular in- stances, as it ruled for the scholastics of the Society of Jesus, whose simple vows taken after a novitiate of two years it endowed with the force of nullifying marriage.' * Sanchez, op. cit., lib. IX, disp. 33 ff. ; Rosset, op. cit, n. 1230 S. • Cod. Iur. Can.. Can. 1309. " Op. cit.. Can. 1313. ■ Op. cit.. Can. 1073 ; c. 3, 4, 6, X, qui clerici vel voventes matrimonium rontrahere possunt, IV, 6; c. un., de voto et voti redemptione, III, 15, in VI° ; S. C. C, Canarien., 26 mart., 9 apr. 1718. ' Gregorius XIII, const. "Ascendente Domino," 25 maii 1584. §22. 112 The New Church Law on Matrimony. II. Impediment of Adoption. (Canon 1059.) 185. All marriages regarded illicit by the civil law of a country on account of legal relationship arising from adoption, will be considei;ed as such also in the eyes of the Canon Law.' The reader is referred to another part of this work in which the origin, history and other features of this impediment are treated more extensively." It will suf- liciently serve our present purpose to note here that practically all civilized nations adopted this impedi- ment which has its origin in the Roman law. The lack of uniformity in the legal modes of adoption, and in the force attributed to it by the civil legislation of the vari- ous countries, occasioned frequent frictions between the Church and the civil law. To avoid these frictions the Church modified her discipline in this respect and hence resulted the hitherto unknown impedient impedi- ment of adoption. Many of the difficulties and contro- versies are now happily ended. By conforming itself to the civil law the Church leaves it to the decision of the various countries whether in a particular locality the relationship arising from adoption should consti- tute a diriment or impedient impediment of marriage. For marriages, therefore, to be contracted in various countries, the Church will not only adopt the civil law as the measure of the force of the impediment of adop- tion, but will guide itself also by the scope of the im- pediment as well as by the particular mode of adoption prevailing in the respective countries. 186. The adoption may be perfect or imperfect. By perfect adoption the person who is sui iuris {arro- gatio) or alieni iuris is incorporated into the family of » Cod. Iub. Can., Can. 1059. " See this work, n. 288 if., treating on the diriment impediment of adoption. Inipediment of Mixed Religion. 113 the adopter with, all the duties, rights and privileges of a legitimate child. The imperfect adoption, unlike the former, permits the offspring to remain in his parental home, and under the authority of his natural parents, nor does it require of the adopter to transfer any part of his property to the child, though the latter may assert his claim to it should the adopter die intestate. The law of some countries admits only perfect adop- tion, that of others permits both perfect and imperfect. According as the civil law conditions the illicitness of a marriage only on perfect adoption or on both kinds of adoption, the ecclesiastical law will also condition it only on perfect adoption or on both perfect and imper- fect adoption. , , The scope of the ecclesiastical impediment of adop- tion is likewise determined by the scope of the civil im- pediment of adoption. In other words, persons whom the civil law disqualifies from licit marriage on account of the presence of a prohibitive impediment of adop- tion, will be declared incompetent also' on the ground of the ecclesiastical law. III. Impediment of Mixed Religion. (Canon 1060— Canon 1064.) 1. Nature of the Impediment. 187. The Church most strictly forbids all marriages between two baptized persons one of whom is a Cath- olic and the other a member of a heretical or of a schis- matic sect. Even the divine law prohibits such a wed- lock, should there be danger of perversion for the Catholic consort and offspring." This canon defines the nature of a mixed marriage. In order that the impediment of mixed religion may " Cod. Iuh. Can., Can. 1060. 114 The New Church Law on Matrimony. arise between two persons, one must be a Catholic and the other sectae hereticae seu schismaticae adscripta. The word "adscripta" means an express affiliation with such a sect. Therefore this impediment would not arise between a practical Catholic and one who fell away from the Catholic communion without having be- come a professed adherent of a heretical or a schis- matic sect. In order that a person may be regarded a heretic or a schismatic, it is not absolutely necessary that he be incorporated into the sect by virtue of bap- tism. It is sufficient that, after receiving Catholic bap- tism, he allies himself with such sects by frequenting their services or outwardly professing their doctrines. A Catholic child, even if he should be brought up by heretics from his very infancy, is not considered a heretic, unless they enrolled his name on the official register of such a sect, or unless he worshiped in it even without such enrollment. 188. Mixed marriages are forbidden by natural, divine, and positive ecclesiastical law. The latter's prohibition is based on the former's. Natural divine law forbids such marriages on account of the serious danger of perversion to which are exposed the Catholic consort and the offspring." Even if this danger should cease in some particular instances, and thus the prohi- bition arising from the divine law be lifted, the ecclesi- astical law would not be relaxed and without a dispen- sation the marriage would be illicit.^^ In the early years of the Church St. Paul " and St. "C. 15, 16, C. XXVIII, q. 1; Benedict. XIV, ep. eneycl. "Magnae Nobis." 29 iunii, 1748; ep. "Simgulari," 9 febr. 1749, ^1; Leo XIII, ep. eneycl. "Arcanum," 10 febr. 1880; ep. enoycl. "Constanti Svmgaro- rum," 2 sept. 1893; Secret. Status, instr. 27 mart. 1830; instr. 22 mail, 1841 ; instr. 15 nov. 1858. "* Wernz, op. cit., n. 578 ; Gaspabm, op. cit., n. 446 ; De Smet, op. eit., n. 252. >*I. Cor. V, 11; Titus, III, 10. Impediment of Mixed Religion. 115 John " found it necessary to raise their voice in ad- monishing their coreligionists against conunnnicating with heretics in things sacred. The same warning found expression in the early Councils which forbade the Christians all intermarriages ^\ith persons pre- fessing a different belief." This prohibition was very rigorous in the early ages, but by virtue of sheer necessity it was somewhat relaxed after the pseudo- reformation period. At the present time, in order to avoid a still greater evil, the Church tolerates mixed marriages provided certain conditions are ful- filled, 2. Dispensation from the Impediment. 189. The Church does not dispense from the im- pediment of mixed religion, unless : 1. Just and grave causes urge such a dispensation. 2. The non-Catholic consort furnishes cautiones whereby he obliges himself to remove all danger of perversion from the Catholic consort, and both con- sorts bind themselves to baptize and educate all their offspring in the Catholic faith. 3. There is a moral certainty that the cautiones will be fulfilled. These guarantees, as a rule, should be given in writing." A mixed marriage, though all formalities required for its validity may be complied with, must be always regarded as illicit unless a dispensation is obtained. A contrary custom, even of the longest duration, would be always considered as corruptela, and hence could never make such a marriage licit.'* When a dis- " II. ep. I, 10 and 11. "Cap. XVI, Cone. IlUberit. (300-306); cap. X, XXI, Cone. Laodicen. (343-381). " Cod. Idr. (Un., Can. 1061. " BENBaJiCT. XIV, De Synodo Dincccsana, lib. IX, cap. Ill, n. 2. 116 The New Church Laiv on Matrimony. pensation is granted from this impediment the Church dispenses also from the law prohibiting communica- tion in divinis with heretics and schismatics. The following pages will be devoted to the explana- tion of the foregoing conditions. 190, I. Benedict XIV " deemed it necessary to ac- centuate the fact that though all the other conditions may be verified in a particular instance the Church does not dispense sine gravi aliqua, ac plerumque publica causa. The Sacred Congregation of Propa- ganda gave expression to the same doctrine when it admonished the delegates of the Holy See that only iustae gravesque causae should influence them to grant a dispensation.^" That the Church does not in- tend to relax its discipline on this point is apparent from the fact that the new legislation following in the footsteps of the old, requires the same iustae ac graves causae as a condition in whose absence a dispensation from this impediment will not be granted. It is easier to determine whether a cause is suffi- ciently grave when one deals with a specific rather than mth an abstract instance. Some of the causes justifying the granting of such a dispensation would be: (1) The welfare of a Christian republic; (2) the . predominence of heretics or schismatics in a certain country; (3) a written promise made by a heretic to embrace the Catholic faith after marriage ; " (4) a well-founded hope that a favorably disposed non- Cath- olic family would return to the unity of the true faith ; (5) the fact that such marriage is the only means whereby children bom of a former union can be edu- cated in the Catholic faith, or whereby (6) scandal, "' Op. cit., loc. cit., n. 5. ^"Litt. eneycl. S. C. de Prop. Fide, 11 mart. 1868; in the new Collec- tanea, n. 1324. " ZlTELLI, op. cit., p. 60. Impediment of Mixed Religion. Ill concubinage, diffamation or attempt at marriage can be avoided.^- Causes of private nature, like super- adult age, lack of dowry, poverty of the widow, an- gustia loci, and others enumerated in the instruction given by the Sacred Congregation of Propaganda ^^ do not suffice singly, but when several concur in one and the same case the circumstances may justify the granting of a dispensation. The importance of a sufficiently grave cause is ap- parent from the fact that without it even the Eoman Pontiff would dispense illicitly, though validly, while the Bishop under the same circumstances would not re- move the impediment for the apostolic indult which he enjoys requires the cautiones as a conditio sine qua non. 191. II. The second condition without which the dispensation should not be granted regards certain guarantees to be exacted from the two contracting parties. Formerly only the non-Catholic consort was expected to give the cautiones; the new law demands a promise also from the Catholic party. The former, according to the tenor of the past discipline, had to promise that he will not interfere with the religious freedom of the latter. The new law requires that he should go even further, and that by a positive act he should remove whatever is calculated to jeopardize the faith of the Catholic consort (circumstances ex- posing her to the danger of perversion). Besides, both consorts must promise that their children wall be baptized and educated exclusively in the Catholic faith. Formerly the Catholic party was not required to make this promise expressly for it was tacitly pre- sumed that such was his intention. Now the Church, "Bangen, op. cit., vol. IV, p. 20. "' Instr. S. C. de Prop. Fide, 9 mail 1877; in the new Collectanea, n. 1470. 118 The New Church Law on Matrimony. more emphatically than ever before, will call to his mind this duty, thus making the non-compliance with it so much more sinful. 192. III. These promises are founded on natural and divine law ; -^ therefore, not only should they be exacted but a moral certainty should be had as to their fulfillment. The Holy Office in an instruction given to the Primate of Hungary on July 7, 1890, insists that unless the foregoing conditions are subscribed to a dis- pensation should never be granted. The same instruc- tion, like the canon of the new law, emphasizes the moral certainty which the pastor should have as re- gards the future fulfillment of the accepted conditions.^' Should the indication show that their fulfillment is im- possible under the contemplated circumstances, or should the insincerity of one or both contracting parties be apparent, the persons in question could not be considered worthy applicants for a dispensa- tion. In case of urgent danger of death, to adjust matters of conscience and, should the case permit, to legitimate the offspring, a dispensation from this impediment may be granted by the Bishop or by the priests when recourse to the Bishop is difficult, even if the non- Catholic party should refuse to give the customary guarantees, provided the Catholic party is favorably disposed.^" In order that the importance of the embraced obli- gations may be more deeply impressed on the con- tracting parties and that the proof of their voluntary assumption be available for the external forum, if need "Instr. Seer. Status, 15 nov. 1858. '' Benedict. XIV, ep. encycl. "Magruie Nobis," 29 iun. 1748 ; Gre- GORious XVI, ep. encyel., "Summo iugiter," 27 mail 1732; Leo XIII, ep. encycl. "Quod multum," 26 aug. 1886; Pius X, litt. ap. "Frovida," 18 ian. 1906, n. II. *■ Cod. Iur. Can., Can. 1043 and 1044 ; see this work, n. 160. Impediment of Mixed Religion. 119 be, the present discipline prescribes that, as a general rule, the guarantees should be given in writing." 3. Injunctions Relative to Mixed Marriages. 193. The Catholic consort is bound by the obliga- tion of endeavoring by prudent means to procure the conversion of the non-Catholic party.^' The legisla- tion contained in this canon formerly constituted one of the promises to which the Catholic party was ex- pected to subscribe expressly, and on which the grant- ing of the dispensation was conditioned.^" This obli- gation does not lose its force by the fact that it is no longer included in, but separated from the conditions explained above. While the Catholic party's readiness to that effect need not be signified in the petition for dispensation, the law of charity, receiving a special sanction and an added force by virtue of the foregoing ecclesiastical canon, nevertheless continues to oblige him. The former discipline employed the words "pro viribus" to express the effort which the Catholic party was expected to make toward converting the non- Catholic consort. The new legislation supplants those terms with the word "prudenter." By this change the supreme legislator means to emphasize the circum- spection and the discretion which must be exercised in order that the Catholic party may succeed in bringing the dissenting consort to the unity of the faith. A faithful performance of all conjugal duties is without doubt the first and one of the most effective means contributing toward the attainment of that end. 194. Though the Church should grant a dispensa- "^ Pius VI, rescript, ad Card. Arohiep. Mechlinen., 3 iul. 1782 ; S. C. S. Off. (ad. Ep. Aurelianen.), 6 iun. 1879; S. C. de Prop. Fide, litt. (ad Ep. Ottavien.), 17 apr. 1879. " Cod. Iue. Can., Can. 1062. "S. C. S. Off., instr. (ad Archiep. Quebecen.), 16 sept. 1834, ad 5; instr. (ad Archiep. Corcyren. ), 3 ian. 1871, n. 3; S. C. de Prop. Fide, instr. (ad "^'ic. Ap. Sveci'ae), 6 sept. 1785; litt. encycl. 11 mart. 1868. 120 The New Church Law on Matrimony. tion from the impediment of mixed religion the con- tracting parties are nevertheless forbidden to present themselves either personally or by proxy, whether be- fore or after the marriage, before a non-Catholic min- ister in order to give or to renew their consent while he officiates in his religious capacity.^" The laws of some countries impose an obligation to give or renew one's consent before a representative of the state as a conditio sine qua non to the gaining of the civil ef- fects of marriage. Should the magistrate of such places be a non-Catholic minister, employed for a purely civil function, the parties would not violate this ecclesiastical law by making use of his services.^' They would not be permitted, however, either to give or to renew their consent before him should his office as civil functionary and as minister of a sect be in- separable, and should he officiate in both capacities simultaneously, namely, by one and the same act. If the parish priest is certain that the contracting parties will disregard this law, or that they have al- ready transgressed it, he should abstain from witness- ing their marriage, unless a very grave cause urges otherwise, and then he must first consult the Ordinary and remove the scandal.^^ Such a very grave cause would exist in every case where the fear is present that a civil marriage will be attempted or that the already attempted invalid marriage will be consum- mated. It is to be noted that in case the marriage is attempted before the minister of a sect the parties incur an excommunication latae sententiae reserved to the Bishop.^^ Absolution from this eensiire must precede the celebration of such a marriage. " Cod. Iur. Can., Can. 1063, Jl. "Instr. S. C. S. Off., 12 dee. 1888, n. 7; in the new Collectanea, n. 1696. '= Cod. Iur. Can., Can. 1063, J2. "'Op. cit., Can. 2319, §1, n. 1. Impediment of Mixed Religion. 121 195. Besides the foregoing injunctions directed to the contracting parties the new legislation inculcates also the duties of the Ordinaries and other pastors of souls when it admonishes them that they (1) should dissuade the faithful to the best of their ability from mixed marriages; (2) should exert every effort not to permit them to be contracted against the law of God and of the Church if they are unable to prevent them altogether; (3) should watch vigilantly over the faith- ful fulfillment of the cautiones which were given in marriages contracted in their own territory or outside it; (4) should be guided in their assistance at such marriages by the instructions contained in canon 1102." The duties of the Bishop and pastors as outlined in the first three points of the foregoing canon need no explanation. It is sufficient to note that the pastor will not consent to witness a mixed marriage until all his efforts to dissuade the Catholic party from such a step prove abortive. If the latter remains immovable and there is a serious danger that marriage Avill be con- tracted outside the Church, provided the parties ex- press a willingness to comply at least with the mini- mum requirements of the law, the pastor should rather assist at their marriage than allow them to resort to an action which is contrary to the law of God and of the Church, besides being invalid. 196. Even if the dispensation should be granted, the banns of such marriage are not to be proclaimed in the Church, as has already been explained in con- nection with canon 1026.^° Should the Ordinary deem it expedient to make such proclamation, no mention should be made of the religious sect with which the non-Catholic party is affiliated. For the validity of " Op. cit., Can. 1064. "See this work, n. 108. 122 The New Church Laiv on Matrimony. the assistance at such marriages it is required that no extrinsic force or fear should be brought to bear on the pastor in order thus to constrain him to ask and receive the consent of the contracting parties.'" According to an instruction Pius IX ordained on November 15, 1858, that such marriages should not take place within the church {extra ecclesiam), and that all religious rites whatsoever must be barred.^' As regards religious rites the new law conforms to the foregoing decree. Since we treat here de odiosis the word "ecclesia" must be interpreted strictly, in which case it should not be applied to the sacristy or to a pri- vate chapel. Such is the meaning of a decision of the Holy Ofifice handed down on January 17, 1877.'' If from the observance of this law grave evils are feared, the Ordinary may permit one or the other of the usual ceremonies but the celebration of the Mass must always be excluded.^' The exclusion of the Mass contains an indirect prohibition against the the im- parting of the solemn nuptial blessing with the usual prayers found in the Eomal Missal, for such a blessing may not be bestowed outside the Mass." 197. From all this legislation it is manifest that under ordinary circumstances the Church wants the parish priest to render more than a passive assistance to such marriages, since he must ask and receive their consent. By passive assistance is meant the mere presence of the pastor and the witnesses in order to testify to the consent given by the contracting parties. The only official act of the pastor would be the record- ing of the marriage in the matrimonial register. Should the obviation of serious evils necessitate it, the "" Cod. Iub. Can., Can. 1095, §1, n. 3. " Gaspakri, op. cit. n. 456 : Db Becker, op. cit., p. 264. " Gasparki, op. cit., n. 463. ™ Cod. Iur. Can., Can. 1102, $2. "Cod. Iur. Can., Can. 1101. Impediment of Mixed Religion. 123 Bishop may, by way of exception, permit even the active assistance of the pastor which could extend to all the marriage ceremonies contained in the ritual, including the blessing of the ring and all the prayers, barring always the celebration of the nuptial Mass and the solemn blessing usually imparted in it. 198. The guarantees must be exacted even after the marriage is already contracted validly but unlawfully. Until they are given and at least the Catholic educa- tion of the children is secured, the Catholic party can- not be admitted to the sacraments." Should the non- Catholic party decline to give the cautiones, the well- disposed Catholic party, provided she made the re- quired promises, may be admitted to the frequentation of the sacraments, scandale remoto."- It is incumbent on the pastor to validate the mar- riage as soon as possible should it be invalid either on account of the lack of form or of the presence of some diriment impediment and separation is not practicable, as is generally the case. The exacting of the cus- tomary cautiones ought to be the first step under such circumstances. Absolution from the censure of ex- communication latae sententiae should follow next if the marriage was attempted not before a civil magis- trate but before a heretical minister. This absolution should be given in foro externo. Only in case the at- tempted marriage is secret and there is no danger of its becoming publicly kno-wii, may the absolution be given in foro interna. Should the non-Catholic party refuse the giving of cautiones, as long as the Catholic party is favorably disposed and the former is willing to renew his consent, the dispensation may still be ob- *'S. C. 8. Off., 2 mar. 1842; S. C. S. Off., 3 ian. 1871; in the new Collectanea, n. 1362, J7. " Gaspakei, op. cit., n. 468 ; De Smet, op. cit., n. 257 ; Wernz, op. cit., n. 588. 124 The New Church Law on Matrimony. tained for the purpose of validating the marriage, especially if there be some children who stand in need of being legitimated. If the non-Catholic party de- clines both the giving of cautiones and the renewal of consent, recourse should be had to sanatio in radice.*^ VI. Impediment of Unworthiness. 199. The new law bases the state of indignity or unworthiness on the following causes: (1) Public re- jection of the Catholic faith (without joining a heret- ical sect) ; (2) Profession of membership in societies condemned by the Church; and (3) Public crime or censure coupled with unwillingness to show any sign of repentance. The impediment of unworthiness is thus contracted between a practical Catholic and one who is stigmatized on account of any of the foregoing three reasons. Formerly other causes beside those enumerated could contribute to the origin of this im- pediment. It is called impediment of unworthiness because one party approaches the sacrament of matri- mony unworthily, and exposes himself to the danger of being guilty of sacrilege. It is generally taught that a worthy party contract- ing marriage with an unworthy party does not sin gravely, notwithtsanding the fact that he is cognizant of the state of unworthiness under which the other is laboring and that he not only assists to administer the sacrament to him but also asks it from him. Even those theologians who accuse the pars digna of venial sin because he becomes a tool offering parti indignae an occasion to receive the sacrament unworthily excuse him from all culpability, should he be in possession of some reason justifying his act.** Furthermore, neither " Gasp ARM, op. cit., n. 468; De Smet, op. cit., n. 257; Weenz, op. cit., n. 588. "D'Annibale, vol. Ill, n. 329; Benedict. XIV, De synodo Vioece- sana, lib. IX, cap. Ill, n. 0. Impediment of Unworthiness. 125 the pastor nor the witnesses are obliged ex officio to prevent the sacrilege of another, but only ex caritate, and they may even permit it indirectly, if the avoidance of greater evil, as is generally the case, demands this/' 200. The faithful should be discouraged from con- tracting marriages with persons who publicly re- nounced the Catholic faith, even if they did not join a non-Catholic sect, or who profess membership in societies condemned by the Church. The pastor should not assist at such marriages without consulting the Ordinary, who, after having weighed all the circum- stances in the case, may permit his assistance. Only grave cause may influence the Bishop to such leniency, and it cannot be shown until, in his prudent judgment, the Catholic education of all the future offspring has been safeguarded and the danger of perversion of the other consort has been removed." The question will naturally arise: Which are those societies whose condemnation by the Church makes a member liable to be the cause of the impediment of unworthiness? Since we treat here de odiosis, the terms: " societatihus ah Ecclesia damnatis adscripti sunt" must be interpreted strictly." We would there- fore conclude that the canon has in mind only the mem- bers of those societies which are expressly and nomi- natim condemned. Such societies are the Masons or the Carbonari, censured by the well-known constitu- tion "Apostolicae Sedis" of Pius IX, and the Odd Fellows, the Sons of Temperance and the Knights of Pythias condemned by the Congregation of the Holy Office on August 20, 1894, in a Decree addressed to the Hierarchy of the United States. According to a decla- " Gasparri, op. cit., n. 475. "Cod. Iur. Can., Can. 1065. "S. C. S. Off. (Portus Aloisii), 1 aug. 1855; (Marysville), 21 aug. 1861; (Leodien.), 30 ian. 1867; 25 maii 1897; consult the new Col- lectanea under numbers 1300, 1495 and 1969. 126 The Neiv Church Law on Matrimony. ration dated August 2, 1907, by the Apostolic delega- tion at Washington this condemnation is to be ex- tended to the female secret societies which are to be regarded as branches, if affiliated with male societies already nominally condemned.*^ Any reason justifying the granting of a dispensa- tion from the impediment of mixed religion would suffice for the Ordinary to permit the pastor to witness marriages whose illicitness would be due to the pres- ence of the impediment of unworthiness. Before such permission is given all precautions must be taken in order to safeguard the Catholic education of the chil- dren and to remove from the Catholic consort the danger of perversion.*^ The good judgment of the Bishop will determine whether the assistance of the pastor should be passive or active. Should he decide in favor of the latter, he should not be so indulgent as to permit also the celebration of the nuptial Mass ' ' nisi gravia adjimcta aliter exigant. ' ' °" 201. So much as regards condemned societies. A few words must now be said on another aspect of this impediment, namely, when it arises from the third cause. The new law reads as follows: if a public sinner or one laboring under a public censure declines to make use of the sacrament of penance or to be reconciled with the Church, the pastor should not wit- ness his marriage unless there is a grave and urgent reason, about which, if possible, he should consult the Ordinary." St. Alphonsus says ^^ that a person is considered a public sinner when his crime is notorious either by " Fanning, in the Catholic Encyclopedia, art., Secret Societies, n. VII. "S. C. S. Off. (Marysville;, 21 aug. 1861; (S. Bonifacii), 23 apr. 1873; 25 maii 1897; 11 ian. 1899. '"S. C. S. Off., 21 febr. 1883; in the new Collectanea, n. 1591. " Cod. Iub. Can., Can. 1066. " Theologia Moralis, vol. VI, n. 44, ib., Gaspaiwi, op cit., n. 477. Impediment of Unworthiness. 127 law, he having been convicted of it by judicial, process, or by fact, when it is committed in a public place, or by fame, when the indications are such that many have already come to the knowledge of it, though to some of those present it may be unknown. The Rituale Ro- manum " classifies in the category of publicly Un- worthy all those who are excommunicati, interdicti, manifesteque infames; ut meretrices, concubinarii, foeneratores, magi, sortilegi, hlasphemi et alii eius generis puhlici peccatores. 202. Should a pastor be asked to assist at the mar- riage of a public sinner who refuses to confess his sins, if at all possible, he should lay the case before the Bishop." This obligation would be incumbent on him for a double reason when, by virtue of a particular law, all marriages must be preceded by a sacramental confession. The Sacred Congregation of Propaganda on April 17, 1820, decreed that Catholics who are pub- lic sinners and who refuse to confess their sins should not be admitted to marriage "nisi parochus ex causis vere gravibus excusari possit." ^^ This decision is founded on the opinion of the authors that the assist- ance of a priest at such marriages is sinful unless he is exonerated on the ground of grave reason. 203. Similar should be the mode of procedure in marriages of those against whom a public censure was fulminated. The Sacred Penitentiaria having been consulted about such a case answered that the pastor is to exert every effort to induce such a person to be reconciled Avith the Church. Should his efforts prove unavailing, recourse must be had to the Bishop,'" who " De SS. Eucliaristiae Sacramento, §8. "8. C. S. Off. (Portus Aloigii), 1 aug. 1855; fHong-Kong), 14 mart. 1860. " Gasparri, op. cit., n. 478. "S. C. S. Off. (Bombay), 21 febr. 1883; S. C. de Prop. Fide (C. G. CJuebec), 17 apr. ISSO; S. Poenit., 10 dec. 1860, ad 18. 128 The New Church Law on Matrimony. {si gravia damna imminere videantur) may permit even his active assistance, always excluding the cele- bration of the Mass." • Should an unrepentant ex- communicatus vitandus ask for a similar favor the Ordinary may not grant it without causa gravissima.^^ " St. Alphonstjs, Theologia Moralis, vol. VI, n. 54 ; ib., Gasparki, op. cit, n. 483. "Feije, op. cit., n. 277. CHAPTER VI. The Diriment Impediments. /. The Impediment of Age. (Canon 1067.) 204. The impediment of age is an obstacle by virtue of which a man and a woman, not having reached either the use of reason or the age prescribed' by ecclesiastical law are barred from contracting a valid marriage. This impediment, as is manifest from the foregoing definition, can arise either from natural law (want of use of reason), or from ecclesiastical law (want of certain required age). The marriages of unbaptized persons, provided they are contracted after the parties reached the use of reason, must be considered valid unless invalidated by a civil impedi- ment of age. The marriages of baptized persons are invalid if the parties concerned lack the age prescribed by ecclesiastical law. 205. In the former discipline the Church accommo- dated itself to the Roman law ^ which regarded as puberes and marriageable the female children after the completion of their twelfth year and the male chil- dren after the completion of their fourteenth year.- While the age of puberty required for the validity of ' L. 3 C. Quando tutores. ' C. 12, 13, X, iJe desponsatione impuberum, TV, 2 ; c. 2, X, de frigidis ct maleficiatis, et impotcntia coevndi, IV, 15; e. un. de desponsatione impuberum, TV, 2, in VI° ; Benedict. XIV, Const., "Omnium solidtudi- num," 12 sept. 1744, ^14, dub. V, §40. 129 130 The New Church Law on Matrimony. other contracts has remained unchanged,^ it has un- dergone some modification in relation to matrimonial contracts. Formerly precocity could supply the defect of age. In other words, parties legally in the state of impuberty, but actually in possession of physiological or natural puberty (implying the potency to procre- ate) could contract a valid marriage even before they reached the age required by ecclesiastical law. This gave rise to many doubts which the present discipline happily eliminates by not permitting a valid marriage unless the male child has completed his sixteenth year and the female child her fourteenth year.* After that age, in the eyes of the Church, the marriage is valid or may be contracted validly though neither of the parties may possess the actual physiological faculty to generate, for this condition is not required by nat- ural law. But, the Codex adds, it is the duty of the shepherds of souls to dissuade from marriage all young people who have not reached the age at which marriage is usually contracted according to the pre- vailing local customs.^ From the foregoing statements it is obvious that the power of the Roman Pontiff over this impediment ex- tends only to the period at which the parties reached the use of reason. Should a dispensation be granted, the consorts are not permitted to cohabit usque dum ambo potentes evaserint, or reached the nubile age.° The Holy See may not dispense below the age of rea- son, for it would be equivalent to crossing the purpose of natural law. 206. The civil laws of the various countries are not uniform in their demand of age required for a valid marriage. Such laws are absolutely obligatory on the ' Cod. Idr. Can., Can. 88, $2. * Op. eit., Can. 1067, §1. ' Op. eit, Can. 1067, $2. ° S. C. S. Off., 2 mail 1866 ; Gasparei, op. eit., n. 508. Impediment of Impotency. 131 unbaptized, for the baptized the compliance Avith them is not ad validitatem, for such persons are governed by the foregoing legislation of the Church. E. g., the civil law of Belgium requires the age of eighteen years on the part of the man and of fifteen on the part of the woman, but extends to them the privilege of dispensation before that age should the highest civil authority deem it advisable.' Therefore, without a civil dispensation a man of seventeen and a woman of fourteen years could not contract a valid marriage in the eyes of the state, but they could do so in the eyes of the Church provided both were baptized. Should the woman in this case be an infidel and the man a Cath- olic, their marriage would be null and void even in the eyes of the Church, unless besides the dispensation from the ecclesiastical impediment of disparity of wor- ship (for the man) a civil dispensation from the im- pediment of age (for the woman) is also obtained. If the civil law does not specify any particular age, then the marriage between a baptized and an unbap- tized person would be valid provided the former is in possession of the legal age (prescribed by the Church) and the latter of the age of reason (the dispensation from the impediment of disparity of worship being presupposed should the former be baptized in the Catholic Church). 11. The Impediment of Impotency. (Canon 1068.) 207. Impotency, in the wide sense, is an inability to procreate offspring and to propagate the species. One must be on his guard not to confuse impotentia coeundi with impotentia generandi. The former is a natural or accidental defect in the genital organs of one or both ■'Code Napoleon, art., 144 and 145; ib., De Smbt, op. oit., n. 275, Scholion. 132 The Neiv Church Laiv on Matrimony. contracting parties preventing copulam de se aptam ad generationem prolis. Such copula presupposes com- pletam perforationem vaginae mulieris per erectum memhrum viri cum effusione veri seminis virilis in vaginam.^ Impotentia generandi, or in other words, sterility, implies the inability to procreate, but presup- poses the ability for coition in the way described above. Impotentia generandi is neither a diriment nor an im- pedient impediment of matrimony." Therefore, the infecundity of the sperm (on the part of man), and ovariotomy, oophorectomy or fallectomy calculated to prevent conception by having recourse to the Porro operation causing an unnatural sterility in the woman, imply only impotentiam generandi but not coeundi.^" 208. Impotentia coeundi in so far as it is a diri- ment impediment to marriage may be defined: Per- petual and antecedent, absolute or relative inaptitude, on the part of the man and the woman, for a conjugal act de se required for the procreation of offspring. Impotency may be : 1. Antecedent or subsequent according as its exist- ence preceded or followed the matrimonial contract. 2. Perpetual or temporal. It is called perpetual when it is irremediable, or, if curable, not so without a miracle or means illicit or dangerous to life. It is temporal when its cure is effected of itself in the course of time, or when it can be remedied by means that are honest, licit and void of danger. 3. Absolute or relative, according as the incapacitas coeundi extends to all persons of the opposite sex, or only to some. ' Gasparei, op. cit., II. 510 ; De Smet, op. cit., n. 276 ; Wernz, op. cit., n. 342; De Becker, op. cit., p. 156. "Cod. Iue. Can., Can. 1068, $2; c. 18, 0. XXXII, q. 5; c. 27, C. XXXII, q. 7. '" Dr. O'Malley, in the American Ecclesiastical Seview, vol, XLIV, p. 684 ff. Impediment of Impotency. 133 4. Natural or accidental. The former has its origin in some intrinsic organic defect of the body, the latter in some extrinsic cause, generally in some functional defect of a pathological nature, as in the case of an- aphrodisia, aphrodisia and vaginism. 209. With these preliminaries in his possession the reader should experience no difficulty in interpreting the first paragraph of canon 1068, which runs as fol- lows: Antecedent and perpetual impotency, whether on the part of the man or of the woman, whether Icnown to the other party or not, whether absolute or relative, invalidates marriage by virtue of natural law. This canon settles the much-mooted question concern- ing the source from which the diriment force of this impediment originates. The majority of theologians always maintained that natural law, apart from eccle- siastical law, endows impotency with the force of nulli- fying marriage. This conclusion must force itself on every one who analyzes the nature of the matrimonial contract, which, as all admit, consists in the mutual tradition of the exclusive and perpetual right which each of the contracting parties bestows on the other for the purpose of procreating children. But impo- tency frustrates this end absolutely and at the very outset, for it bars the possibility of even the first requi- site, namely, an act apt in itself to promote the primary end to which this contract tends by its very nature. Furthermore, a person laboring under antece- dent and perpetual impotency is not in a position to transfer such a right to another quia debitum carnale stilvere non potest. 210. Impotency does not invalidate marriage un- less it is antecedent. The subsequent impotency can effect only the use of marriage or the right' one ac- quires by it, but not the marriage itself, which remains 134 The New Church Law on Matrimony. valid even though under such circumstances its use might become illicit. Temporary impotency even if it should be antece- dent does not invalidate marriage because it admits a remedy. For marriage already contracted it matters very little whether the impotency is absolute or rela- tive (provided it is antecedent) for in either hypothesis such marriage would be rendered invalid. The party laboring under relative impotency may be admitted to another marriage, not so, however, in the case of abso- lute impotency. The canon states distinctly that the marriage entered into with an antecedent perpetual impotency is invalid regardless of whether the fact of impotency was known or unknown to the other party. If it was known, some authors bind the parties to a cohabitation as brother and sister ; others again permit a new marriage oblig- ing the man to a support of the impotent consort.^^ This latter opinion receives an indirect sanction by the new law, though it fails to take into account the ques- tion of support. Such obligation would, however, arise ex caritate should the party who is free from im- pediment have the marriage annulled and subsequently contract another. The imposition of such an obliga- tion supposes that the marriage was contracted with a full knowledge of the existence of antecedent impo- tency. 211. Both the man and the woman are impotent when they lack the genital organs proper to their re- spective sex. The latter 's impotency may be caused also by the arctitudo vaginae and vaginism." Towards the impotency of the former, besides the cause already stated, may contribute the want of semen, also the ab- " Gaspaebi, op. cit., n. 526; Schmalzgeuber, IV, XV, n, 42. '^ Vaginismus est in hyperesthesia vulvae omnem eoitum impediente. Impediment of Impotency. 135 sence of both testicles (as is the case with eunuchs),'^ aphrodisia," and anaphrodisia." Before a definite declaration is made as regards the objective invalidity of the marriage on the ground of any of these reasons, it must be carefully ascertained whether the impotency to which they give rise was antecedent and by its na- ture perpetual or incurable. 212. The aptitude or inaptitude to normal marital intercourse is therefore the touchstone of the presence or absence of the impediment of impotency. This gives us occasion to say a few words about hermaphrodites, or persons who are in possession of more or less per- fectly developed genital organs of both sexes. Though the organ of one sex, as a rule, shows a more perfect or complete development than that of the other, pos- sunt in utroque sexu copulam perfectam habere.^^ De Smet quotes Brouardel as the authority for the opin- ion that no example has as yet been found of a person who both externally and internally would possess the attributes of both sexes.^' The co-possession of organs of the other sex does not in itself disqualify a hermaphrodite from mar- riage. The question is easy of solution when he is impotent according to the undeveloped or defective sex, for then he can make use of marriage only by means of the developed sexual organ, and he must even make a deposition to the effect that he intends to renounce absolutely the use of the other. Should he bd equally pot ens in both sexes, which is a practical im- " Sixths V, const. "Cum frequenter," 27 iun. 1587. " Caliditas viri si ille nequeat expectare vas mulieris, quin totum semen defluat extra vas. S. C. C, in Neapolitana Matrim., 5 iul. 1862. '° Si vir membrum virile adeo flaccidum habeat, ut capax erectionis saltern sufficientis non sit. S. C. C, in causa nuUitatis matrimonii, 24 ian. 1871. " Gasparei, op. cit., n. 536. " Op. cit., n. 280. 136 The Neiv Church Law on Matrimony. possibility, he is free to choose the organ which he in- tends to use in marriage.^' He may be barred from marriage only when there is a moral certainty as to his absolute inaptitude to carnal intercourse. In case of doubtful impotency, though his marriage should be discountenanced as much as possible, it could not be absolutely forbidden. The new law distinctly states that when the impediment of impotency is doubtful, whether by law or by fact, the possibility of marriage is not to be absolutely excluded.^" This settles a con- troversy regarding women who have undergone a surgical operation resulting in the removal of ovaries, of matrix, or causing infecundity by some other way. All these in the new law, which agrees with the prac- tice established during the former discipline, will have their way open to marriage.^" It must be borne in mind that a marriage null and void on the ground of impotency cannot be rendered valid solely by means of artificial fecundation." 213. The impediment of impotency is not recog- nized by the civil law of every country, though on the ground of error a declaration of nullity can be ob- tained even from those courts which do not admit the existence of this impediment.^^ The civil law of Aus- tria, Italy, Spain and the United States of North America practically accepts the canonical impediment of impotency. ^^ " Wbbnz, op. cit., n. 353 ; S. G. C, in FerrentirM Matrim., 24 mart. 1888; 18 aug. 1888. ■°C0D. IDK. Can., Can. 1068, §2. "°S. C. S. Oflf. (Quebec), 23 iul. 1890; (Westmonasterien), 3 iul. 1895; S. C. C. (Bosnonien), 30 ian., 27 febr., 30 apr., 25 iun. 1836; 26 febr., 23 apr., 1842. '" Gaspabei, op. cit., n. 533 ; see this work, n. 53. ''Cod. Civil. Germ., ^1333; Lex Hung, de matrim. civ., §54; Sohultb, op. cit., p. 514. ^ Wernz, op. cit., n. 354 ; Kbezer, Treatise on the Law of Marriage and Divorce, n. 12, 160, 164. Impediment of Ligamen. 337 III. The Impediment of Ligamen. (Canon 1069.) 214. Ligamen is the bond of a previous and exist- ing marriage. The Creator by uniting one naan to one woman, and Christ by restoring marriage to its pris- tine ideality showod unmistakable preference for the monogjoiy and monandry. It is generally agreed that natural law proscribes both polygamy and polyandry, the former relatively, the latter absolutely. Without doubt, positive divine law, contained in the Ncav Testa- ment, forbids both absolutely.^* 215. A person bound by the bond of a former mar- riage cannot validly contract a new marriage, though his present one is non-consummated, salvo privilegio fidei.^^ The presence of the impediment of ligamen indicates the objective validity of previous wedlock. It does not matter whether the latter is only a mere natural contract (when both parties are infidels), or a sacrament (when both parties are Catholics). Should another marriage be attempted while the bond of the previous one continues and should the parties be guilty of adultery, they would contract a diriment impedi- ment of crime, necessitating a dispensation before they could validly marry each other, even if the former marriage should be dissolved by the death of the con- sort. Regardless of the cause invalidating or dissolv- ing a previous marriage, no new marriage may be con- tracted until the nullity or the dissolution of the former is established legitimately and beyond all doubt.'" In case of doubt no new marriage should be at- tempted until a definite decision is reached, otherwise ''See this work, n. 36 ff. ; Gaspakbi, op. cit., n. 631. "Cod. Iue. Can., Can. 1069, §1. " Cod. Iue. Can., Can. 1069, §2. 138 The New Church Law on Matrimony. the objective value of a subsequent marriage would de- pend entirely on the fact whether the parties were free or not. If the new marriage is contracted in good faith it will enjoy all the advantages of a putative marriage " even if subsequent investigation should re- veal the presence of the impediment of ligamen, in which case the parties would have to separate immedi- ately after such discovery. The declaration of nullity must always proceed from a higher ecclesiastical tribunal, namely, the Holy See or the Bishop. This law should never be disregarded when the marriage has all the appearances of a valid' contract. When the marriage is invalid on the face of it, so that the fact is manifest to all, recourse to a juridical process may be dispensed with. Canon 1990 legislates that in such cases the Ordinary, after having cited the parties, may declare the marriage null and void Avith the intervention of the defensor vinculi. 216. The impediment of ligamen ceases by the death of the former consort,^* in case of non-consum- mated marriages by solemn religious profession,^" or by an authoritative dispensation of the Roman Pontiff, and in legitimate marriages among the unbaptized by Pauline privilege.^" An extensive treatment of these individual causes is presented in another part of this work.^^ 217. On May 14, 1868,^' the Sacred Congregation of the Holy Office laid doAvn special rules to be followed in cases in which the ascertainment of the death of the former consort is connected with some difficulties. The =' C. 8, X, qui filU sint legitimi, IV, 17. ==C0D. lUE. Can., Can. 1118. " Op. cit., Can. 1119. "• Op. cit., Can. 1120. =' See this work, n. 547 ff. " In the new Collectanea, n. 1321. Impediment of Ligamen. 139 following is a brief summary of the instruction. The first step should be directed toward demanding an authentic death-certificate. This should be based on the reliable records of the death-register of the parish, or of the hospital, or of military authorities. If such a document cannot be obtained from the ecclesiastical authority recourse should be had to the civil authority of the place where the consort died. In the absence of such a document at least two witnesses, worthy of be- lief, should be placed under oath testifying to their former acquaintance with the dead consort as well as to the cause of his death and the place where it oc- curred. If only one eye-witness can be adduced, pro- vided he is above all suspicion, his deposition may suffice, but of itself it does not constitute a probationem plenam. If no eye-witnesses can be procured, sec- ondary or hearsay witnesses may be summoned whose knowledge of the death of the consort is founded on the testimony of eye-witnesses. In the absence of any witnesses whatsoever the case should be solved by call- ing to aid the principle of presumption. In doing so inquiry should be made into the moral character, re- ligious attitude, occupation, age and health of the presumably defunct person, and into the circumstances preceding, accompanying and following his absence. Light should be thrown also on his relations with the surviving consort. As partial testimony the letters he wrote and the newspapers giving an account of his death may also be requisitioned. The sworn statement of the living consort does not of itself constitute a sufficient evidence of the death of the other consort, and in the absence of other proofs corroborating such testimony the Holy See must be consulted in every case individually.^' " S. C. S. Oflf., 3 mail, 1893 ; Nouv. Mev. Theol., vol. XXVI, p. 153 ; ib., De BECKBai, op. cit., p. 141. 140 The Neiv Church Laiv on Matrimony. A moral certainty is required as to the severance of the former matrimonial bond before another marriage may be contracted. The new law enacts severe punish- ments against the bigamists. It binds them with irreg- ularity ipso facto incurred ^* and brands them aS in- fames even if they should attempt only a civil marriage while the bond of the former continues. Should they continue in illicito contubernio, notwithstanding the admonition of the Bishop, according to the gravity of their guilt they may be placed under excommunication or even under personal interdict.^^ Because the impediment of ligamen arises from natural law it cannot be lifted by means of a dispensa- tion. To maintain that Pontiffs did dispense from it is to repeat an old calumny which has no foundation in history.^^ IV. Impediment of Disparity of Worship. (Canon 1070— Canon 1072.) 1. History and Nature of the Impediment. 218. An adumbration of this impediment may be found in the Old Covenant, in which God's chosen people were forbidden to intermarry with the seven Gentile nations who inhabited the Promised Land be- fore it was given as an inheritance to the Israelites." The main reason for this divine prohibition was founded in the same cause that inspired the matri- monial legislation of the Catholic Church, namely; the danger of perversion. This danger and that of spir- itual apathy find fertile soil in a home where oneness of faith does not contribute to happiness and peaceful " Cod. IDE. Can., Can. 984, n. 4. '» Op. eit., Can. 2356. "' RosKOVANY, De matrim. mixt., t. IV, p. 84 ; Weknz, op. cit., n. 365 ; Gaspabri, op. cit., n. 631. "Deut. XXXIV, 16; I. Esdras X, 10, 11, 18, 19. Impediment of Disparity of Worship. 141 cohabitation. The difference of religion is often the contributory cause of much dissension whose avoid- ance very frequently is bought by the Catholic party at the cost of abandoning all religious practices and of neglecting to safeguard properly the spiritual interests of the future offspring. St. Paul compares a marriage between a Christian and an infidel to a fellowship which light makes with darkness.''^ St. Cyprian '" and TertuUian *" are perhaps the first ecclesiastical writers who with St. Paul discountenanced such mar- riages, and said to the early Christians: "Bear not the yoke with unbelievers." *' 219. Despite the promptness with which the early Christians complied ^dth all disciplinary measures of the Church, the Council of Elvira (300-306) found it necessary to incorporate a positive law among its en- actments, forbidding Christian girls to contract mar- riages with infidels, Jews, heretics or priests of the pagan rites." The rigor of this law was enhanced by the Constantinian legislation (339) which threatened with capital punishment all Christians attempting to marry a Jew." The law of Theodosius (388) branded • as adulterous the marriages contracted between a Christian and a Jew. Estius, interpreting this law, remarks that this stigma was attached to these unions not on account of their nullity, but by reason of the gravity of the sin of which the Christian who thus de- graded his character was guilty." It was in Spain that this impediment first obtained the force of invalidat- ing a marriage. Such force may have been attributed to it in some localities of other countries also, but, "II Cor. VI, 14. " MiGNB, p. L., vol. IV, col. 767. '" MiGNE, P. L., vol. I, cola. 1290 and 1291. " II Cor., VI, 14. " Mansi, Cone, cit., cap. XV, XVI. " Webnz, op. cit., n. 504. "Bui. Bom. Con., Benemct XIV, vol. Ill, "Singulari Nobis," §7. 142 The New Church Law on Matrimony. more commonly, it was considered only an impedient impediment/^ Its incorporation into the Gratian col- lection did not of itself endow it with the force of a universal law of the Church. The practically unani- mous opinion of canonists holds that the diriment im- pediment of disparity of worship was introduced by virtue of an accepted custom prevailing in the Eastern and the "Western Church in the period intervening be- tween the ninth and the twelfth century.*" This cus- tom implicitly accepted by the Church in the past has been canonized officially by the present ecclesiastical legislation, invested with the force of written law and declared binding on all persons baptized in the Cath- olic Church, or converted to the Catholic Church from heresy or schism, when they contract marriage with an infidel. 220. This short historical survey proves sufficiently that its diriment force did not originate from natural or divine law. By virtue of these laws it is only an impedient impediment, otherwise the Church could neither dispense from it nor modify it to the extent evidenced in the most recent matrimonial legislation. With these facts in our possession we can see the dif- ference between a perfect and an imperfect disparity of worship. The former has its origin partly in the ecclesiastical and partly in the natural divine law, and according to the old discipline it used to arise between a baptized and an unbaptized person. This was in the past the diriment impediment of disparity of worship in the strict sense. The imperfect impediment of disparity of worship is founded on divine and nat- ural law. It is only an impedient impediment, more properly designated by the name impediment of mixed " Benedict XIV, loo. oit., §9. "Bbnbmct XIV, loc. oit., §10; Gaspabbi, op. cit., n. 607; Esmein, Le mariage en droit ccmoniqwe, tit. cit., vol. I, pp. 216 fE.; Webnz, op. cit., n. 504. Impediment of Disparity of Worship. 143 religion. It arises between two baptized persons of whom one is Catholic and the other a heretic or a schismatic. The impediment of mixed religion renders the marriage illicit; that of disparity of worship both illicit and invalid. The impedient impediment of mixed religion has undergone no change in the new matrimonial legislation. The diriment impediment of the disparity of worship has been considerably modified. Both the old and the new discipline base this impediment not on the profession of faith, but on the indelible character impressed by the sacrament of baptism. The new legislation lays stress on the Cath- olic baptism in contradistinction to any other, admin- istered by other religious denominations." According to the old discipline a marriage contracted between an unbaptized and a baptized person was invalid irre- spective of the sect in which the baptism was received. But, since the new discipline distinguishes between Catholic and non-Catholic baptism, it is manifest that by means of this impediment the Church does not mean, to legislate for marriages contracted by two per- sons of whom neither was baptized in the Catholic Church. Hence, the impediment of disparity of wor- ship is restricted to marriages entered into by per- sons of whom one is baptized in the Catholic Church or has been received into the Church from heresy or schism and the other is unbaptized. This sweeping change forces the conclusion that after the Feast of Pentecost, 1918, the Church will consider valid ail those marriages that shall be contracted between an unbaptized person and a baptized non-Catholic, the latter in this one case being exempted from contracting the impediment of disparity of worship on account of " Nullum est matrimonium contractum a persona non baptizata cum persona baptizata in Ecclesia catholica vel ad eandem ex haeresi aut schismate conversa. (Codex Iue. Can., Can. 1070, §J..) 144 The New Church Law on Matrimony. the reception of non- Catholic baptism. Such mar- riages will be valid provided no impediment of natural or divine law or of ecclesiastical law stands in the way of their validity. Thus, the impediment of disparity of worship will no longer invalidate a union contracted by an unbaptized person with a person baptized out- side the Catholic Church. The form which must be ob- served for the validity of such marriages is discussed in another part of this work. 221. By the impediment of disparity of worship the Catholic party is affected directly and the unbaptized party indirectly. Thus, the Catholic party is declared incompetent to contract marriage with an infidel. Since, however, the nature of the marriage contract requires that both parties be qualified, such marriages would be invalid even if the Catholic party were not bound by a particular form of marriage. By virtue of the individuality of this contract the incompetence of one party is communicated to the other. A double prohibition stands in the way of a marriage between a Catholic and an unbaptized person. On the one hand, there is the divine and natural law as an im- pedient impediment, and, on the other hand, the eccle- siastical law as a diriment impediment. In some in- stances the first prohibtion may cease, namely, when the danger of perversion is absent. But, even in such cases, the ecclesiastical prohibition retains its force, and such marriages are neither licit nor valid without a dispensation given by the Roman Pontiff or his dele- gate. 2. Catholic Baptism. 222. Since it is the Catholic baptism from which the impediment of disparity of worship draws its origin in the new legislation, it will be well at this point of our investigation to acquaint ourselves with Impediment of Disparity of Worship. 145 the full meaning and scope which the words Catholic baptism imply. For the general guidance of the reader one could premise that the foregoing words are to be interpreted in the sense in which the decree "Ne temere" employs them, namely, baptism administered in the Roman Catholic Church. 223. 1. They do not include the baptism adminis- tered by the Uniat Greek Churches. Such baptism makes one a member of the Catholic Church, but not subject to this legislation. The Codex of Pius X, as a general rule, does not legislate for the Churches of the Oriental Rites, unless an express mention is made of them, or the tenor of the canon is such that its very nature presupposes its observance on the part of the Orientals." Thus the new legislation expressly con- forms in this respect to the traditional custom of the Church whose first exponent was Innocent III in his Constitution "Licet Graecos" given in the Fourth Lateran Council." Therefore members of the Oriental Church, as long as they adhere to that Rite, do not have to submit to the requirements prescribed by the decree "Ne temere" unless the other party to the con- tract, being a Roman Catholic, is bound by it. But if a member of the Uniat Greek Church affiliates himself officially with the Latin Rite, then he falls under the scope of the decree, and by this very act becomes "Cod. Iur. Can., Can. 1. "An assembly of renowned theologians convened in 1631, headed by Cardinal Pamphili, thus interprets the tenor of this Constitution: Nolle Conatituzioni Apostoliehe non s'intendano eompresi gli orientali se non nei tre seguenti casi: 1. Nei punti di fede e dottrina cattoliea; 2. dove la materia stessa dimostra la comprensione, in quanto non 6 una legge soltanto eeelesiastiea ma una diehiarazione deUa legge divina e naturale. 3. Quando, benchfe si tratti di ordinazioni disc.iplinari, g\i orientali vi sono espressamente nominati. Ex litt. encycl. S. C. de Prop. Fide, nov. 8, 1882; Collectanea, n. 113; New Collectanea, n. 1578; Papp-SzilXgti, Enchiridion ium Ecolesiae orientalis Catholicae, $55, p. 68, Magno- Varadini, 1880; Wernz, op. cit., n. 104; Fekrebes, op. cit., n. 510; Acta Ap. Sedis, vol. I, p. 408. 146 The New Church Law on Matrimony. liable to all matrimonial impediments enforced by the canonical discipline of the Western Church, including those impediments which are ignored by the Rite which he leaves. He could therefore contract the impedi- ment of disparity of worship which according to the new legislation is based on the reception of baptism in the Roman (not Greek) Catholic Church. 224. 2. The words Catholic Baptism include those adults who in the reception of baptism were actuated by the motive of becoming Catholics. 3. They include those heretics and schismatics who return to the true fold, though they may subsequently relapse into their former heresy or schism. If the baptism of such converts is doubtful, they are to be re-baptized conditionally. If it is valid, then the mere profession of faith and absolution from heresy will suffice to give them the same standing in the eyes of the ecclesiastical law as if they had actually received Catholic Baptism. 4. In the case of infants, baptism depends (a) on the intention of its minister; (b) on the intention of the child's parents. Both the minister and the parents may be of the same faith or of different faiths. In the first instance they may both be either Catholic or non- Catholic. In the second supposition the agent admin- istering baptism may be Catholic and the parents of the child non-Catholics, or vice versa. In the follow- ing pages we shall consider these hypotheses by con- necting them with cases in which baptism is given in urgent necessity. Outside such necessity no doubt is entertained as to the nature of baptism, since it is gen- erally conferred by the minister of that religious de- nomination into which the parents intend to incorpo- rate their offspring. The child of non-Catholic parents receives Catholic baptism, if it is administered by the priest. The child of Catholic parents receives a non- Impediment of Disparity of Worship. 147 Catholic baptism, if it is baptized by a clergyman out- side the Catholic Church. In placing the following considerations before the reader we do not intend to determine conditions neces- sary for the validity of baptism. Our purpose is to ascertain those conditions only which must affect the child in order that it may become subject to the new law regulating the impediment of disparity of worship. 225. A. If the parents of the child and the person who baptized it are of the same faith (Catholic or Protestant), it is presumed that the latter wished the child to become a member of that religious body to which its parents belongs. In such a case a Catholic, regardless of his intention, could administer only Catholic baptism to a child both of whose parents are Catholics. In case one of the parents is non-Catholic, even if the baptizing Catholic should expressly exclude a Catholic baptism^ and should intend to baptize the child for the sect of the non-Catholic parent, the bap- tism would still remain Catholic. The same is to be said if a non-Catholic in case of "urgent necessity bap- tizes a child whose parents are of mixed religion. To defend this opinion the following reasons are ad- vanced. The baptism in such cases is either valid or invalid. Its proper administration on the part of the baptizing agent presupposes an act in conformity with the intention of the Church or of Christ. But neither the Church nor Christ intends that the child whose parents, whether both or only one, are Catholics, should be affiliated with a non-Catholic sect. Such affiliation would, furthermore, be against the will of the parents. If both parents are Catholics, the reason is self-evident. If one of them is a non-Catholic, then it is presumed that the parents have virtually inter- preted and expressed on this point the intention of all their future children, when they gave the cawtiones, 148 The New Church Law on Matrimony. submitting to all the conditions which the Church pre- scribes before a dispensation from the impediment of mixed religion or disparity of worship can be obtained. If neither the person baptizing nor the parents of the child are Catholic, there is still a possibility as to the administration of a Catholic baptism. While ordi- narily it is presumed that the child is incorporated into the sect of its parents, this presumption must give way to fact, if the minister of such baptism, though he be a non-Catholic, explicitly states that his intention is to administer a Catholic Baptism. 226. B. If the parents are non-Catholic and the person administering baptism is a Catholic, then two possibilities may arise, namely, the Catholic agent either expresses his intention as to the administration of Catholic baptism or fails to do so. If his intention is expressed, then the baptism thus administered is Catholic. This would be true even if the parents ob- jected to such an act. We presuppose here a case of urgent necessity when the Catholic is bound in con- science to administer baptism. He is released from this obligation if the parents themselves wish to bap- tize the child or authorize a non-Catholic present to do so. If the Catholic fails to give expression to his inten- tion and the parents subsequently to such a baptism inscribe the child's name in the baptismal record of their sect, according to Lehmkuhl,^" such baptism is not to be considered Catholic. The question could arise, does the mere entering of a child's name in a non- Catholic register settle the nature of this baptism ? It is hard to see how an accidental circumstance, pos- terior to baptism, brought into play by the adt of an external agent unrelated to this baptism, could in any way affect the objectivity of the sacrament. The bap- " Theologia Moralis, n. 893, Friburgi Brisgoviae, 1910. Impediment of Disparity of Worship. 149 tism, therefore, must be considered from its very be- ginning either Catholic or non-Catholic. In our opin- ion the registration cannot change its nature. We are inclined to pronounce in favor of its Catholicity. 227. C. If both parents are Catholic and the person who in case of urgent necessity administers baptism is a non-Catholic, the baptism must be considered Cath- olic. The same is to be said though oiie of the parents be non-Catholic. The reason for the latter statement is contained in the cautiones with which the present marriage is supposed to have been contracted. If the mixed marriage is invalid, the child illegitimate, and the non- Catholic agent administering baptism wishes to incorporate the child into a non-Catholic sect, a serious doubt might then arise as to the true nature of such baptism. Even in such a case the child ought to get the benefit of the doubt, especially if the mar- riage is putative, in which case the child would be con- sidered legitimate. Cases like these will have to be solved by the Holy See. If the baptism is not administered in case of urgent necessity, and the parents, whether they are both Catholic or only one of them, intentionally make use of the services of a non-Catholic clergyman, then two possibilities may arise. Such parents may be either in good faith or in bad faith. In the former instance such a baptism is to be considered Catholic. In the latter case it is to be regarded as non-Catholic. If the par- ents in case of urgent necessity, permit their child to be baptized by a non-Catholic clergyman, they must instruct him that the child is to be a member of the Catholic Church, or rather, if nobody else is present, they should baptize it themselves. If they fell away from the Church, and leave the matter to the non- Catholic clergyman, it is presumed that he is at liberty to incorporate the child into his own sect. 150 The Neiv Church Law on Matrimony. 228. D. Some theologians maintain that we arenot to. regard as Catholics those infants who, not yet seven years old, were validly baptized in the schismatic Church, even if subsequently educated in the Catholic faith by their converted parents. The advocates of this opinion ^^ do not admit that such a child, not yet enjoying the use of reason, becomes a convert by the very fact of the conversion of its parents. We decline to subscribe to their opinion. It is admitted by all that parents are the interpreters of the child's intention before it reaches the use of reason. They are expected to safeguard not only their own spiritual welfare, but also that of their child. Therefore, what they have considered their duty expressly, namely, to embrace the Catholic faith, their offspring is to consider its duty interpretatively. Thus it would seem that the conversion of the parents of itself postulates the simul- taneous conversion of their child who is validly bap- tized but below the age of reason. This opinion is more in harmony with both the spirit of the Church and the wish of the parents, granted the condition mentioned above. The other opinion which advocates that the child must be permitted to decide this question after it reaches the use of reason, cannot be sustained. The Church insists on the Catholic education of such a child. If analogy has any force, we could adduce the civil law which, by the naturalization of the father, eo ipso admits to citizenship his child who is a minor. In the foregoing paragraphs the child's legitimate superiors play the same role as the parents themselves in the absence of the latter. 229. If the child has completed its seventh year it is considered adult in ordine ad baptismum. Conse- quently, the parents or its legitimate superiors cease "'WOUTERS, Commentarius in Decretum "Ne temere," p. 85, Amstelo- danii, 1910. Impediment of Disparity of Worship. 151 to be its interpreters in these matters. The child at that age is expected to express its own wish for the re- ception of baptism.^^ Until very recently there was no particular reason for a more specific determination of the true nature of a Catholic baptism as differentiated from a non-Cath- olic baptism. Therefore the authors gave a very in- adequate treatment of this question and the Church itself did not consider it necessary to lay doAvn rules that would embrace all contingencies in connection with the administration of baptism. Since the introduction of the new Church-law this question carries with it far-reaching consequences. The foregoing statements are a tentative explanation of the author, salvo meliori iudicio. Several doubts will have to be solved in the near future by positive legislation of the Church. The definition of the true nature of Catholic baptism will determine who are bound by the new form of marriage and who are liable to contract the impediment of dis- parity of worship. 230. To summarize the rules enunciated above, we can state that the validly baptized children of Cath- olic parents will certainly be subject to the new legisla- tion on the two points just mentioned, unless the cir- cumstances under which the baptism was administered plainly indicate that the parents did not intend to bring the children up in the Catholic Church, for instance, if they deliberately and in bad faith requested a non- Catholic clergyman to administer the baptism. Chil- dren of non-Catholic parents, if baptized by a Catholic, will be regarded as having received a Catholic bap- tism. Therefore, if they are subsequently educated in the Catholic faith, the ecclesiastical law will not dis- criminate between them and the children of Catholic parents. This is evident from the unusual concession '«CoD. lUR. Can., Can. 745, §2, n. 2. 152 The New Church Law on Matrimony. which the new law makes in their behalf, provided cer- tain conditions are verified. Such baptized children, when they marry a non-Catholic, are exempted from the Catholic form of marriage, provided, from their very infancy, they have been brought up in heresy or schism or infidelity or without any religious training whatsoever/^ Such persons are not bound by the Catholic form of marriage because a special ecclesias- tical law exempts them. Since no such special exemp- tion is granted to them as regards the impediment of disparity of worship one must conclude that they would contract the impediment should they attempt marriage with an infidel. With this explanation in mind we may state that the impediment of disparity of worship will always arise between an unbaptized person and 1. The offspring of Catholic parents, baptized as an infant in the Catholic Church. 2. One who, as an adult, received Catholic baptism, but consequently relapsed into his former heresy, or lost all faith. 3. A person born of non-Catholic parents and in his infancy (whether in urgent necessity or outside such necessity) was baptized in the faith. 4. A person baptized validly outside the Catholic Church and admitted into its membership by profes- sion of faith and absolution from heresy. 5. The child of Catholic parents who after its Cath- olic baptism has fallen away from the Faith, either in infancy or in adult age. 231. A few years after the promulgation of the de- cree "Ne temere" an inquiry was made whether the new marriage law was to be applied to a marriage be- tween an infidel and the child of non- Catholic parents, who, after his reception of Catholic baptism, had been '"Cod. Iur. Can., Can. 1099, §2. Impediment of Disparity of Worship. 153 brought up a Protestant, or without any religion what- soever. The Holy Office on March 31, 1911, replied that the Holy See has reserved to itself the exclusive right of settling such questions." Therefore, a re- course was to be had to Rome in all such cases indi- vidually. The present general law promulgated in the Codex of Pius X implicitly abrogates this decision of the Holy Office when it expressly exempts from the new form of marriage all persons who, being born of non-Catholic parents, from their very infancy, after their reception of Catholic baptism, are brought up in heresy, or schism, or infidelity, or without any re- ligious training. Thus the present legislation, as is seen from the fore- going exposition of its tenor, modifies to some extent the rule interpreting the scope of the Benedictine declaration as approved by the Holy Office on April 6, 1859.°° In this decree under the name heretics are included : 1. Those who, though baptized in the Catholic Church, have been brought up in heresy before their seventh year, and still continue to profess its doctrine. 2. Those who were educated by heretics rather than in heresy, having received little or no instruction in that doctrine, and having seldom or never worshipped in it. 3. Those who as children fell into the hands of here- tics, and were incorporated into a heretical sect. 4. Apostates who fell away from the Catholic Church, and allied themselves with a heretical sect. 3. Doubtful Baptism. 232. The impediment of disparity of worship hav- "S. C. S. Officii, 31 mart., 1911. Acta Apoat. Sedis, vol. Ill, p. 163; American Ecclesiastical Review, vol. XLV, p. 84. "Feijb, op. cit., n. 319; Gaspabri, op. cit., n. 977; Lehmkuhl, op. cit., n. 905, note 1. 154 The New Church Law on Matrimony. ing been modified, some of the principles formerly held must also undergo a change. Though the impediment will no longer prevent the validity of marriages en- tered into by one baptized outside the Catholic Church and an unbaptized person, a part of the old discipline on this point will be applicable in cases where parties thus married will wish to become converts. It goes without saying that , their marriage will be the first thing claiming the attention of the Church. Its objec- tive validity must be decided by the form which such persons are bound to employ as a conditio sine qua non. Since they are bound by all the other ecclesiasti- cal impediments as well as by those of the natural and the divine law, extreme care must be exercised in the inquiry into the objective validity of such mar- riages. 233. Baptism will no longer constitute the same dif- ficulty as was experienced in the past in marriages when neither of the parties was baptized in the Cath- olic Church. If two Catholics wish to contract rriar- riage and a doubt arises as to the validity of the bap- tism of one of them, then the party whose baptism is questioned should be baptized conditionally before the marriage ceremony is performed. If, however, the marriage is contracted without this doubt being first removed, such a union is considered valid. The ad- ministration of conditional baptism may be postponed for a good reason till after the marriage ceremony, but it should not be neglected. Such a conditional baptism should be administered secretly and without prejudice to the validity of the marriage in question as long as this doubt perseveres. If the subsequent investigation should disclose that the supposed Catholic party whose baptism was doubted was never baptized, then, we maintain, the impediment of disparity of -worship would assert its force by invalidating such a marriage. Impediment of Disparity of Worship. 155 Gasparri '" holds that it would be valid from the very beginning, even if the doubt should subsequently be settled in favor of the non-reception or the invalid ad- ministration of the sacrament of baptism. This opin- ion, which can hardly be admitted, is combated by sev- eral leading canonists.^ An incontrovertible presump- tion {praesumptio iuris et de iure) favoring the valid- ity of baptism is at the bottom of such opinion, when there is a question as to the validity of the marriage contracted by two parties one of whom is baptized and the other is doubtfully baptized. Since this kind of presumption admits no proof to the contrary, the con- clusion is logical, but the premises are by no means cer- tain. The decrees of the Sacred Congregation when followed to their final analysis fail to support this opinion of Gasparri which is accepted by Leitner " and Marsella.^' Wernz °° shows how the following Causa Tarvisina cannot be adduced in its vindica- tion. The question was asked whether Laura Delfini (she married a Catholic and subsequently a doubt arose as to her baptism) is to be baptized conditionally? On May 4, 1737, the Sacred Congregation of the Council answered : ' ' affirmatively, and without prejudice to the marriage." Giraldi°° adds: It is to be specially noted that whenever baptism is to be reiterated in case of adults, it should be done secretly, whether they are married or single, and without prejudice to the mar- riage in the former case, if it was properly contracted. It is this reply of the Sacred Congregation of the Council which gives rise to such conflicting opinions. The opinion of Gasparri, Leitner, and Mansella has " Op. cit., n. 598. "Lehrl). des hath. Eherechts, p. 279; Paderborn, 1902. "^ De Impedimentis Matr. dirimentibus, p. 79, n. 1 ; Romae, 1881. "• Op. cit., n. 507. " Exp. Im: Pont., p. I, sect. 615. 156 The New Church Law on Matrimony. already been given. Seherer " maintains that the deci- sion of the Sacred Congregation of the Holy Office handed down on November 17, 1836 ; "^ on February 5, 1851 ; "^ and on September 9, 1868," are based on a principle which directly contradicts the opinion ex- pressed by the three authors just named. It is mani- f eet that Seherer claims too much for these decisions ; nor do they reflect his opinion expressly, though it must be admitted that they favor it. 234. Grasparri's opihion intimates that in case there is a doubt as to the valid administration of baptism (especially if it is dubium dubio iuris) the Church ac- cepts its validity by a presumption that cannot be controverted {presumptione iuris et de iure). No one will deny that in an impediment of ecclesiastical origin the Church has a free hand, and therefore she may so legislate in favor of baptism regardless of the sect by which it was administered, as long as its nullity is not certain. The Church could surely be guided by such principle, especially when doubt arises as to the valid- ity of the baptism of one whose parents were Catholics, "' Handbuch des Eirchenreehts, p. 374, u. 12 ; Graz, 1886. "It was asked whether the Calvinists and Lutherans whose baptism is doubtful are to be regarded as infidels so that the impediment of dis- parity of worship arises between them and the Catholics. Reply: Each individual ease must be examined when such heretics belong to sects whose rituals do not insist on the essential matter and form to be used in the administration of baptism. If their rituals prescribe the proper matter and form, then the baptism is to be regarded as valid. If a doubt should arise in the first case, the baptism is to be considered valid in relation to the validity of marriage. But if it is discovered that the baptism is null . . . the marriage is likewise null. (S. C. S. Off., Collectanea, n. 649.) " The inhabitants of Holland converted to Catholicism are generally to be considered validly married on the ground of their baptism. If it is discovered that in a particular case the baptism is invalid, recourse must be had to the Holy See. (Feije, De Imped, et Disp. Matrimoniali- hus, n. 467; Lovanii, 1874.) " The Vicar Apostolic of Japan asked : Are the doubtfully baptized Japanese to be regarded as validly baptized if they wish to contract marriage? Answer: A doubtful baptism is to be considered as valid in relation to the validity of marriage. (S. C. 8. Off., Collectanea^ n. 657.) Impediment of Disparity of Worship. 157 who always professed the Catholic faith, and married a Catholic after having made use of the prescribed form. But, de facto, it is questionable whether the Church actually means to take such an attitude. Fur- thermore, even if it should regard such a doubtful bap- tism as if it were absolutely valid in relation to mar- riage, the objective validity of the baptism, and consequently the objective validity of the marriage contracted under such circumstances, would not depend on this particular subjective attitude of the Church. Therefore, unless the Church intends to dispense im- plicitly every time this impediment may arise subse- quently to marriage (after the doubt concerning the validity of baptism is solved) such unions objectively taken must be considered and treated as contracted, at the very beginning, by persons of whom one was bap- tized and the other unbaptized. It is precisely the im- plicit disposition Gasparri gratuitously attributes to the Church, which cannot be demonstrated nor pre- sumed, because the decision rather favors the contrary opinion. If we interpret the decree issued by the Sacred Congregation of the Council in the above- quoted Causa Tarvisina (namely, Laura Delfini should be baptized conditionally, without prejudice to the validity of the marriage) in the light of this reasoning, the marriage in question does not necessarily have to be regarded as valid from the very beginning. Wernz *' thinks that this clause has no more force than others, couched in different language, but rendered in similar cases, for instance, ' ' From reasons thus far adduced the nullity of marriage is not apparent. ' ' {Ex hactenus deductis non constare de nullitate matrimonii). Such clause does not necessarily affirm the objective validity of the marriage. It leaves the consorts in statu quo until the doubt is settled. After the doubt is once re- " Op. cit., n. 507, n. 28. 158 The New Church Laiv on Matrimony. moved the presumption must give way to certainty. Therefore, if the invalidity of the baptism is proved, the impediment of disparity of worship reveals itself and invalidates the marriage from its very beginning. If it is discovered that the baptism (whose validity was questioned) was valid, then, this impediment being ab- sent, the marriage from the very beginning was objec- tively valid. 235. The decision of the Holy Office, rendered on July 20, 1840, if followed to its logical analysis, cor- roborates the view here proposed.^^ Gasparri re- marks °^ that if in this case the heretical party (Angli- can) is not baptized, then the first marriage was legiti- mate, because neither one of them would have been under the jurisdiction of the Church at the time their marriage was contracted. Thus he plainly admits that on account of the subjective doubt the objective valid- ity of the marriage is not subject to change. Nor is the indelible character of Baptism conferred or re- moved by such a doubt."* Therefore, the Holy Office in its ruling, it may be supposed, was influenced by the presumption that the Anabaptist woman was never baptized, and that the Anglican was baptized. But, had it been subsequently discovered that the latter was unbaptized, the second marriage would have been null on account of the impediment of ligamen. This circum- stance leads one to conclude that the first marriage could not have been declared valid objectively but sub- " An Anglican wishes to become a Catholic. He was formerly maT- ried to an Anabaptist woman who maintains that she was never baptized. A serious doubt, however, may arise also as to the validity of the man's baptism on the ground that it was administered by an Anglican minister. The husband left his first wife and married a Lutheran woman. The question was asked : Which of the two women is his legitimate wife ? Eeply : As long as it is evident that the first wife was not baptized, the first marriage is invalid. The second, provided no other impediment is in the way, is valid. (Feije, op. cit., n. 464.) " Op. cit., n. 603. " Wernz, op. cit., n. 508, note 33. Impediment of Disparity of Worship. 159 jeetively and by a mere presumption. It is in the light of this principle one is to view the decision of the Holy Office concerning the Calvinists and Lutherans whose baptism is doubtful. They are to be considered validly married to Catholics, but only on condition that this doubt perseveres. If it is evident that the baptism is null, the marriage is nuU.''^ 236. In the foregoing decisions the majority of modern canonists '"' see the implicit application of the principle that the validity of such marriages is to be presumed with a presumption which can be contro- verted {praesumptione iuris tantum). Such decisions do not mean to attribute an objective validity or in- validity to a doubtful union. They bestow on it only a presumptive validity or invalidity, as the case may demand. This presumption must cede to fact when the objective validity or invalidity of the baptism is estab- lished, and it is detected that the presumption has no foundation in fact. Therefore, if the subsequent in- vestigation proves that the presumed impediment of disparity of worship has foundation in fact, the mar- riage is invalid. If the contrary is proved, then the marriage is valid, provided no impediment of natural or divine or ecclesiastical law militates against its validity. This opinion has been canonized and incorpo- rated into the new Codex." It states distinctly that if at the time of the marriage one of the parties was gen- erally considered baptized,, or his baptism was doubt- ful, his union with a Catholic must be considered valid, "' "Si autem certe cognoseatur nullum baptisma . . . nullum est matrlmonium." (17 nov. 1830; Feije, op. oit., n. 464.) '°De Beckek, t)e Sponsalibus et Matrimonio, p. 218; Bruxelles, 1896. Weenz, op. cit., n. 507; De Smet, De Spnnsalibus et Matrimonio, n. 290; Brugis, 1909; and others. " Si pars tempore contraeti matrimonii tanquam baptizata oommunitcr habebatur aut eius baptismus erat dubius, standum est pro valore matrimonii, donee certo probetur alteram partem baptizatam esse, al- teram vero non baptizatam. (Cod. Iur. Can., Can. 1070, J2.) 160 The New Church Law on Matrimony. until it is proved beyond doubt that one party is bap- tized and the other unbaptized. The words: "Donee certo prohetur alteram partem haptisatam esse, alteram vera nan haptisatam" clearly indicate that a decision issued in all such inquiries does not pretend to pronounce upon the objective validity of the mar- riage under consideration, but only upon its presump- tive (subjective) validity. 237. The validity of baptism may be questioned on two grounds, namely, a doubt may arise as to the fact of its actual administration {dubium dubio facti), or its administration being certain, there may be a doubt whether the proper matter and form were used {du- bium dubio iuris): It is generally admitted that either of these doubts is sufficient to invest the baptism with a presumptive validity in relation to marriage,'^ and the same kind of validity would be communicated to the marriage conti*acted in such doubts. The Holy Office expressly confirmed this opinion by a decision rendered on July 7, 1880." The principle involved in this decision has been somewhat modified in its appli- cation to several more recent cases. Thus on July 10, 1896, the Holy Office declared that if two heretics or schismatics wish to be married, as long as the adminis- tration of their baptism is certain, though its validity may not be self-evident, they are to be considered as validly baptized.-* While this decree seems to lay a particular stress on the fact of administration, its tenor must not be so construed as to lead one to maintain that if such fact of administration is questioned {dubium dubio facti) the Sacred Congregation does not mean to bestow on the baptism that presumptive valid- "Wbrnz, op. cit., n. 507; De Becker, op. cit., p. 223; Gasparei, op. cit., n. 603. " Gaspabbi, loc. cit. " S. C. de Prop. Fide, Collectanea, n. 1940. Impediment of Disparity of Worship. 161 ity which is the first and least requisite in ordine ad. validitatem matrimonii. 238. The principle that doubtful baptism is re- garded as valid in relation to marriage is applicable both to prospective and to contracted marriages." This principle affects the validity of baptism directly ; that of the marriage indirectly. Since the objective valid- ity or invalidity of the marriage depends on the objec- tive validity or invalidity of the baptism, it is impera- tive that in each particular case a thorough investiga- tion should be made into the baptism of the non-Cath- olic party. If the doubt cannot be removed even after a conscientious inquiry, then the decisions sent to Bishop Gross, of Savannah, by the Congregation of Propaganda will be of notable assistance." Their scope is so comprehensive that it comprises practically all the contingent circumstances that can render a bap- tism doubtful. Their perusal will disclose the condi- tions under which one may be justified in forming a presumption in favor of baptism. The document being the most significant ever issued on this perplexing question, we deem it advisable to reproduce it here in substance. Bishop Gross asked: I. Whether, when there is a doubt as to the administration or non-administration of baptism, we may pronounce judgment on the prin- ciple of presumption, when such baptism affects the validity or nullity of the contracted marriages? II. Whether, when the fact of administration of bap- tism is unknown, one may apply the principle of pre- sumption in relation to the validity of a contracted marriage, in the following eases: "S. C. S. Off., 9 sept., 1868; see Collectanea, n. 657. ■•• Collectanea, n. 662; Acta Sanctae Sedis, XXV, pp. 261-263; Cone. Plen. Bait. Ill, ap. ad num. 122, p. 24.6; Am. Eccl. Beview, vol. VIII, pp. 140-142. 162 The New Church Law on Matrimony. 1. If the non- Catholic party or parties are the off- spring of parents who belong to a sect which rejects baptism, then the baptism is not to be presumed. 2. A similar pronouncement is to be made in the case of those whose parents professed a religion which does not admit infant-baptism, namely, in which baptism is not administered except to adults, for instance, those reaching the age of thirty years, as is the case with the baptists. 3. The same is to be said of those whose parents while living fiailed to ally themselves with any par- ticular sect; pretending to worship a supreme being by their honest and upright conduct rather than by the teachings of any determined religion. 4. If the parents were zealous members of a sect which believes in the necessity of baptism, or in which it is generally administered, then the baptism of their children should be presumed. But what is to be said of children whose parents were indifferent or negligent members of such a sect, or professed a religion which does not reject baptism absolutely but disbelieves in its necessity and generally fails to administer it? Is the baptism to be presumed in both instances or in either of them? 5. If only one parent professes and practices the teachings of a sect in which baptism is generally ad- ministered, and this parent has the unquestioned ascendancy over the child 's education, then the baptism is to be presumed. The same is to be said when, after a siiffieient in- quiry, it is doubtful whether such a parent exercised the chief control over the child's education. But what pronouncement should be made when it is discovered that neither the sect nor the disposition of mind of the parent having the principal control over the child's education favors baptism, while the disposition of the Impediment of Disparity of Worship. 163 less influential parent and his sect are favorably in- clined towards baptism? 6. Cases in which no presumption favors baptism should be decided on the principle : Fact is not to be presumed, but must be proved. The Congregation of Propaganda on August 1, 1883, replied : To the I. Affirmatively, investigation of each case having first been made. To the II. Affirmatively concerning the first, the second and the third article, the first part of the fourth article, and the first part of the fifth article; in the latter article after the words "chief control over the child's education" are to be added the M^ords: "and the other parent is not known to be positively opposed to baptism, then baptism must be presumed." In other cases noted in the second part of the fifth article recourse must be had to the Holy See with a complete statement of all the circumstances calculated to shed light on the case under consideration. The foregoing decisions provide the answer to the sixth inquiry. 239. The guiding principles approved in this decree enjoyed a very extensive application in the old discip- line. In the new legislation there applicability is lim- ited to marriages contracted between a Catholic and a non-Catholic about whose baptism there is a doubt. In such a case a dispensation from the impedient im- pediment of mixed religion will suffice, though it is desirable that all such petitions should be accompanied [ad cautelam) with a request also for the dispensation from the impediment of disparity of worship. The Sacred Congregation in our days is more disposed than in the past to respond to such appeals. Though there may be a doubt as to the validity of the baptism of the non-Catholic party, as soon as the dispensation from the impediment of mixed religion is granted, the mar- 164 The Neiv Church Laiv on Matrimony. riage is licit. The priest is not permitted to baptize such a person conditionally with the view of obviating the possibility of the marriage's nullity. Such baptism may be conferred only on the condition that the non- Catholic party is willing to make a profession of faith and join the true fold." 240. If a doubt should arise as to the validity of the baptism of the Catholic party, its conditional adminis- tration should not be neglected, irrespective of whether the doubt arose before or after the marriage. A clear distinction should be made here between baptism which is necessary to salvation necessitate medii, and baptism which is necessary for the validity of the marriage in question. The first must be objectively valid; but a dotibtful baptism will suffice in relation to marriage. Therefore, it is not absolutely wrong, under certain cir- cumstances, to unite in marriage two Catholics without having previously administered conditional baptism to the one whose baptism is not altogether certain. The Church permits even the sacrament of Holy Orders to be administered to candidates who cannot prove by means either of a letter or of a witness that they were baptized; in that case the baptism is presumed, pro- vided they are the offspring of Catholic parents.'* When, however, there is a prudent doubt, it ought to be removed by a conditional administration of the sacra- ment which is the gate to all other sacraments." 241. The opinion of Lehmkuhl '" that whenever the Church dispenses from the impediment of mixed re- ligion it means to dispense simultaneously {ad caute- lam) also from the impediment of disparity of worship, " S. C. Inq., 13 apr., 1878 ; ib., Wernz', of. cit., n. 507, n. 29. "S. C. de Prop. Fide, litt. (ad Vic. Ap. Cocinc. Occid.), 30 sept., 1848; Collectanea, n. 652. "Am. Eccl. Review, vol. XII, pp. 241, 406, 407. " Theol. Moralis, vol. 11, p. 566; Friburgi Brisgoviae, 1910. Impediment of Disparity of Worship. 165 has long been discredited by modern canonists/' Therefore a dispensation from the latter is never to be presumed unless the rescript alludes to it explicitly. This opinion is based on a decision of the Sacred Con- gregation rendered on April 29, 1842,*' and is corrobo- rated by the new legislation.*^ Therefore, if a mar- riage is contracted with a dispensation from the im- pediment of mixed religion (mthout ad cautelam from the impediment of disparity of worship) and it is sub- sequently ascertained that the non-Catholic party whose baptism was doubtful is unbaptized, the mar- riage is null. The declaration of nullity may be made by the Ordinary,** provided a judicial process is estab- lished ; a course necessitated by the fact that unions of this kind possess the true form of marriage. In all doubtful cases recourse should be had to the Holy See.*° The impediment of disparity of worship ceases to bind when Catholics live under circumstances which make it morally impossible for them either to ask for a dispensation or to marry one of their own faith. Thus, for instance, the conditions prescribed by the ecclesiastical law are impossible of observance by those living in some parts of China.** A similar case should be imagined, if some Christians should strand on an island where they could intermarry only with infidels. Under such circumstances, when they are obliged to choose between marrying an infidel and remaining single, provided they do not expose their faith to very serious danger, and are in good conscience, this im- " Webnz, op. cit., n. 508, n. 33; De Becker, op. cit., p. 224; De Smet, op. cit., n. 290. " De SMiff, loc. cit. " Cod. Iur. Can., Can. 1070, §2. " Cum interventu tamen defensoris vinculi matrimonialis. S. C. S. Off., 5 iun., 1889. (Collectanea, n. 1706.) '"De Beckeir, op. cit., p. 224; De Smet, op. cit., n. 290. '°S. C. S. Off., ep. (ad Vie. Ap. Mandciuriae), 4 iun., 18.51; see Col- lectanea, n. 1275. 166 The New Church Laiv on Matrimony. pediment would not be considered as invalidating their unions.*' Such environments, can very rarely exist in our times, though they may easily be imagined in places like Alaska. The missionaries of those regions should submit an exposition of facts to the considera- tion of the Holy See, and abide by its decision.** It is only a theoretical question whether the Church means to dispense in advance in such infrequent instances, whether it only tolerates such marriages, or, owing to peculiar circumstances, it intends to suspend a law whose observance is manifestly impossible. All three hypotheses contribute to the same final result.** 4. Dispensation from the Impediment. 242. It has already been stated that the diriment force of this impediment does not arise either from natural or from divine positive law, but was intro- duced by custom.'" Consequently it is in the power of the Holy See to permit that a Catholic for grave rea- sons may contract marriage with an infidel. A dispen- sation in all such instances implies also the declaration that the danger of perversion, which is the cause of the existence of this impediment, is either absent or remote. The Church does not dispense from this im- pediment unless : I. The marriage in question is contracted in a place in which there are more infidels than Catholics."^ II. Just and grave causes urge such a dispensation. »' De Becker, op. cii., p. 217 ; De Smet, op. cit., n. 289. " De Becker, op. cit., p. 218. "" Gasparri, o-p. cit., n. 623 ; Wernz, op. cit., n. 510, note 37 ; De Becker, op. cit., p. 217; De Smet, loc. cit.; see also Decree of the Holy Office, on June 4, 1851; Collectanea, n. 1275, and St. Alphonsus, op. cit., lib. Ill, n. 763. '"' Benedict XIV, "Singulari Nobis," Bull. Bom. Con., vol. III. "' This condition is not embodied in the new Code. It is a local law, and its application to countries where infidels predominate will no doubt continue. Impediment of Disparity of Worship. 167 III. The non-Catholic consort furnishes cautiones whereby he obliges himself to remove all danger of perversion from the Catholic consort, and both con- sorts bind themselves to educate all their offspring in the Catholic faith. IV. There is moral certainty that the cautiones will be fulfilled. These cautiones, as a rule, should be given in writ- mg."' It is to be noted that when a dispensation is granted from this impediment the Church dispenses also from the law forbidding communication in divinis with infidels. Sometimes certain restrictions are placed in the rescript, as, for example, (1) the Catholic woman is not permitted to marry a Jew; (2) the par- ties shall not, either before or after the marriage, present themselves before a non-Catholic minister for the purpose of having him witness their consent in his religious capacity.''^ The following pages will be devoted to the explana- tion of the conditions just mentioned. 243. I. The first condition, as Gasparri remarks,"^ is not appended to dispensations granted to Christian countries, but only to those granted to missionary places. We may add that the new Codex makes no mention at all of this first condition. Formerly in missionary regions this condition was verified only when in the village where the Catholic party resided, the infidels outnumbered the Christians. This re- quirement was somewhat modified by a special indult granted by the Congregation of Propaganda on Janu- ary 14, 1806, to the missionaries of China and the East Indies."^ This decree states that the first condition re- "CoD. lUK. Can., Can. 1061. " Op. cit., Can. 1063, Jl. "* Op. cit., n. 611. " Collectanea, n. 1270. 168 The New Church Law on Matrimony. quired for the granting of the dispensation is fulfilled though in a certain village or town (pago) the Cath- olics predominate, as long as they are in the minority in the district (toparchia) to which this particular town belongs. Gasparri remarks "" that unless this ex- tensive interpretation is distinctly stated in the facul- ties, the faculty to dispense is restricted to cases which occur in towns where the Catholics are in the minority. It is hard to see why such a conclusion should be drawn from the wording of the decree. It distinctly states that in the future the words of the clause ("in places where there are more infidels than Catholics") are generally to be applied to separate districts."' It would seem that the words " generatim in posterum" indicate a rule whereby, in the future, faculties to dispense will be given with the understanding that the first condition for granting the dispensation will be verified when the above-quoted words find their true application in their amplified sense, namely, when they refer to the toparchia (district) in which the person has a domicile or quasi-domicile. Therefore, no such territorial re- striction as Gasparri indicates should be put on these words, unless the faculty to dispense distinctly contains such a restriction. 244. II. Natural, divine, as well as ecclesiastical law prohibit the granting of such dispensation without the verification of the conditions specified in the sec- ond point, for otherwise the granting of the dispen- sation would amount to offering contumely to the Creator. Even if in certain instances natural law would not militate against such a union, the apostolical impedient and the ecclesiastical diriment law would ■"' Op. cit., loc. cit. " "Conditio ilia, in locis ubi sunt plures infideles quam fideles, genera- tim, in posterum intellipenda sit, non de singulis pagis vel vicis, sed de singulis toparohiis." (Collectanea, u. 1270.) Impediment of Disparity of Worship. 169 still retain their full force. In case the circumstances were such that the natural law would forbid the mar- riage, the Holy See, even in the absence of a just cause, could dispense validly, though illicitly. Under the same circumstances neither licit nor valid dispensation could be granted by one who has only a delegated power. Benedict XIV "' deemed it necessary to accentuate the fact that though all the other conditions may be verified in a particular instance the Church does not dispense sine gravi aliqua, ac plerumque publica caivsa. The Sacred Congregation of Propaganda gave expres- sion to the same doctrine when it admonished the dele- gates of the Holy See that only iustae gravesque causae should influence them to grant a dispensation."' That the Church does not intend to relax its discipline on this point is apparent from the fact that the new legis- lation following in the footsteps of the old, requires the same iustae ac graves causae as a condition in whose absence a dispensation from this impediment will not be granted. 245. It is easier to determine whether a cause is sufficiently grave when one deals with a specific rather than Avith an abstract instance. Some of the causes justifying the granting of such a dispensation would be: (1) The welfare of a Christian republic; (2) the predominance of infidels in a certain country; (3) the fact that such marriage is the only means whereby children born of a former union can be educated in the Catholic faith, or whereby (4) scandal, concubinage, diffamation or attempt at marriage can be avoided."" Causes of private nature, like superadult age, lack of "' De Synodo Dioecesana, lib. IX, cap. Ill, n. 5. »»Litt.. encycl. S. C. de Prop. Fide, 11 mart. 1868; in the new Collec- tanea, n. 1324. '" Bangen, op. cit., vol. IV, p. 2U. 170 The New Church Law on Matrimony. dowry, poverty of the widow, angustia loci, and others enumerated in the instruction given by the Sacred Congregation of Propaganda "^ do not suffice singly, but when several concur in one and the same case the circxunstances may justify the granting of a dispensa- tion. The importance of a sufficiently grave cause is ap- parent from the fact that without it even the Eoman Pontiff would dispense illicitly, though validly, while the Bishop under the same circumstances would not remove the impediment even if he should grant a dis- pensation by virtue of the power which an apostolic indult would give him. 246. III. The third condition without which the dispensation should not be granted regards certain guarantees to be exacted from the two contracting parties. Formerly only the non-Catholic consort was expected to give the cautiones, the new law demands a promise also from the Catholic party. The former, according to the tenor of the past discipline, had to promise that he will not interfere with the religious freedom of the latter. The new law requires that he should go even further, and that by a positive act he should remove whatever is calculated to jeopardize the faith of the Catholic consort (circumstances exposing her to the danger of perversion). Besides, both con- sorts must promise that their children will be baptized and educated exclusively in the Catholic faith. For- merly the Catholic party was not required to make this promise expressly, for it was tacitly presumed that such was his intention. Now the Church, more em- phatically than ever before, will call to his mind this duty, thus making the non-compliance with it so much more sinful. ">' Instr. S. G. de Prop. Fide, 9 maii, 1877 ; in the new CoUeotcmea, n. 1470. Impediment of Disparity of Worship. 171 247. IV. These promises are founded on natural and divine law,"- therefore, not only should they be exacted but a moral certainty should be had as to their fulfill- ment. The Holy Office in an instruction given to the Primate of Hungary on July 7, 1890, insists that unless the foregoing conditions are subscribed to, a dispensa- tion should never be granted. The same instruction, like the canon of the new law, emphasizes the moral certainty which the pastor should have as regards the future fulfillment of the accepted conditions."^ Should the indications show that their fulfillment is impossible under the contemplated circumstances, or, should the insincerity of one or both contracting parties be ap- parent, the persons in questions could not be consid- ered worthy applicants for a dispensation. In order that the importance of the embraced obliga- tions may be more deeply impressed on the contracting parties and that the proof of their voluntary assump- tion be available for the external forum, if need be, the present discipline prescribes that, as a general rule, the guarantees should be given in writing."* 248. The Sacred Congregation distinguishes be- tween dispensation of disparity of worship given to prospective marriages and those granted to contracted' marriages. According to an instruction given by the Congregation of Propaganda on February 15, 1780, this dispensation should very rarely be granted to Catholic women wishing to contract marriages with infidels, because experience teaches that in their ease the danger of perversion seldom ceases."' The danger "' Inatr. Seer. Status, 15 nov., 1858. "Magnae Nobis." '"Benedict XIV, ep. encycl., 29 iun., 1748; Gregobius XVI, ep. eneyel., "Summo iugiter," 27 mail, 1732; Leo XIII, ep. encycl. "Quod multum," 26 aug., 1886 ; Pius X, litt. ap. "Provida," 18 ian., 1906, n. II. "" Pius VI, rescript, ad Card. Archiep. Meehlinen., 3 iul., 1782 ; S. C. S. Off. (ad Ep. Aurelianen.), 6 iun., 1879; S. C. de Prop. Fide, litt. (ad Ep. Ottavien.), 17 apr., 1S79. ""Collectanea, n. 1266. 172 The New Church Law on Matrimony. being less in case a Catholic man wishes to marry an infidel, a dispensation may be granted more read- ily."° 249. After the marriage has been contracted, though invalidly, and the Catholic party wishes to have it vali- dated, if the danger of perversion is removed, the re- quest to dispense should not be denied. Such a dis- pensation in favor of a well-disposed person is more readily granted than in the case of mixed marriages, when the validity of the marriage does not depend on the dispensation."' If he danger remains, it is prefer- able to leave the Catholic party in good faith as to the validity of the marriage rather than grant a dispensa- tion.'"' If the Catholic party, being aware of the nullity of the marriage, asks for a dispensation, such favor cannot be granted unless the danger of perversion is first removed. If this cannot be done, she should be advised to have recourse to a civil divorce rather than jeopardize her spiritual welfare.'"^ This remedy is practicable, but only among civilized nations. The Congregation of Propaganda in one of its above-quoted decrees "" has provided for similar emergencies arising in uncivilized countries. If a mar- ried woman through no fault of her own, by force of circumstances, is so situated that her faith is seriously endangered, and she is constrained by violence to con- tinue in such circumstances, she should be reminded of her miserable plight, and, if possible, freed from the spiritual danger surrounding her. If her actions clearly indicate that she is doing all in her power to liberate herself from the degrading environments, then she may be strengthened and comforted even by a ""S. C. S. Off., 29 apr., 1891; see Collectanea, n. 1279. "'Db Smet, op. cit., n. 291. '°'S. C. de Prop. Fide, 13 sept., 1760; Collectanea, n. 1261. '" Gaspare:, op. cit., n. 615. "° See above, foot-note 108. Impediment of Disparity of Worship. 173 prudent administration of the sacraments, but a dis- pensation should never be given to her."^ 250. The reprint of the answer given by the Con- gregation of Propaganda on May 3, 1828, and the re- quest which occasioned it, will perhaps help to give a clearer notion of the discipline of the Church in these matters. The Vicar Apostolic of Tonkin asked whether this dispensation may be granted to one (1) who, hav- ing formerly lived with an infidel cum contumelia Creatoris, now wishes to be dispensed from the im- pediment of disparity of worship. It is hoped that the danger of perversion is absent, and a faint hope is en- tertained even for the conversion of the infidel party; (2) who hopes to be able to live sine contumelia Crea- toris as far as the infidel consort and the little children already born or to be born are concerned, though the adult children will not be converted; (3) whose infidel consort consents to everything except the Catholic edu- cation of the first bom, or the first male child already born or to be born. May the dispensation, in this third case, be granted, in a most urgent necessity, as, for in- stance, when the proximate danger of death demands it? To the first and the second inquiry the reply was affirmative. The third also was affirmative with the proviso that the Catholic party is at the point of death. But even then it is necessary to exact a promise that in case of recovery she will endeavor to convert the infidel party and to bring up all the children in the Catholic faith."^ '" "Che se non si fosse ella volontariemente costituita in tale stato, ma per violeuza e per forza tirata e ritenuta, allora dovrebbe procurarsi, che I'uno e I'altro pericolo della perversione e della fornicazione da prossimo si facesse rimoto, e I'esperienza presa da' suoi sforzi e disssnsi continui, per conforto, con prudenza aeoordarle i Sagramenti, veduta la sua disposizione, ma non accordare la dispensa giammai. {Collectanea, n. 1261.) ""S. C. dc Prop. Fide, litt. (ad Vic. Ap. Tunk. Orient.), 3 maii, 1828; see Collectanea, n. 1273. 174 The New Church Law on Matrimony. 251. Clement XIII in his instruction to the Vicar Apostolic of Oriental Su-tchuen insists that these fac- ulties must be used only within the territory of the grantee. The dispensation can be given only to true Catholics whose consorts refuse to be baptized, and only in case a grave inconvenience would result in consequence of a separation. They must always be given gratis, and with an injunction on the Catholic party to educate all the children in the true faith and to strive to bring about the conversion of the infidel. Both parties must be instructed about the necessity of renewing their consent, which, in order to avoid perse- cutions or scandal, may be done without witnesses, and, if possible, the infidel party should be informed of the nullity of the present marriage."^ 252. A grave cause can more easily be found in contracted marriages than in prospective marriages. It is of more frequent occurrence in missionary places than in Christian countries. Consequently the dispen- sation, as a rule, is more readily given in the first two instances than in the latter two."* It is left to the good judgment of the dispenser to determine whether the existing cause is of sufficient gravity to justify the granting of the dispensation. 253. The decisions of the Sacred Congregations of Propaganda and of the Holy Office will furnish consid- erable help towards forming an idea of such justifying causes. If a Catholic and an infidel have contracted marriage, and have lived sine contumelia Creatoris, their spiritual welfare is considered a sufficient cause for the granting of a dispensation, especially if they have children and a separation from the infidel party is connected with grave difficulties.^^' "'S. C. S. Off., 12 ian., 1769; see Collectanea, n. 1263. "* Gasp ARM, op. ait., n. 619 ; Cod. Iue. Can., Can. 1061, n. 1. "= S. C. S. Off., 15 sept., 1736 ; Collectanea, n. 1258. Impediment of Disparity of Worship. 175 Gasparri, from the decisions of the Sacred Congre- gation of Propaganda, draws the inference that the faculty received by an indult to dispense from the im- pediment of disparity of worship cannot be sub-dele- gated, unless so extraordinary a privilege is expressly communicated by the Holy See."" This statement has to be somewhat modified. In the new legislation it is distinctly stated that one who has an ordinary power of jurisdiction may sub-delegate a faculty which the Holy See has granted him by a special delegation, un- less such a power is expressly withdra\^^l in the re- script."^ Dispensation from this impediment, though all the conditions are willingly subscribed to, should not be granted with readiness, because experience teaches that many unforseen dangers arise threatening the spiritual welfare of the Catholic party."^ It is for this reason that the Church prefers marriages which Cath- olics contract among themselves even with a dispensed impediment of affinity or consanguinity, to those in which she would be called upon to give a dispensation from the impediment of which we treat."^ Each indi- vidual case must be examined carefully, so as to avoid exposing the dispensation to the danger of nullity on account of the absence of a sufficiently grave cause.^" 254. The spiritual danger threatening the Catholic party in such marriages is emphasized by the insistence with which the Church urges that the promises be made by the infidel party. These promises must be exacted even in articulo mortis.^-^ In the old legislation, in "°0p. cit., n. 620. "'Cod. Iuk. Can., Can. 199. "' Litt. Ap. Gregorii PP., XVI, 30 apr., 1841 ; Collectanea, n. 1428. ""8. C. S. Off., 12 ian., 1769; Collectanea, n. 1263. ™S. C. S. Off., 15 febr., 1780; Collectanea, n. 1266. "' S. C. S. Off., 18 mart., 1891; Collectanea, u. 2188; Acta S. Sedis, vol. XXIX, p. 638. 176 The New Church Law on Matrimony. articulo mortis, all the Bishops could dispense (in favor of contracted marriages) from this impediment {sive per se, sive per alios) when recourse to the Holy See was impossible.^" They enjoyed this special indult on condition that the required promises were made.^^' De Becker '^* interprets this decision in the sense that, without regard to the circumstances brought about by the threatening death, all the promises must be urged on both parties. A dispensation, in his estimation, may, however, be granted in articulo mortis, though the infidel party refuses to consent to the conditions, provided the danger of perversion for the Catholic party is removed and the latter gives all the assurances to abide by the cautiones. This lenient interpretation is quite comformable to the spirit of the Church, as evidenced in the various decrees of the Sacred Congre- gation,'^^ and in the new Code. 255. In accordance with the tenor of the most re- cent legislation the Ordinaries have very extensive fac- ulties urgente mortis periculo. These faculties are personal; therefore, they may be exercised in behalf of their subjects, without regard to territory, and in behalf of all those who actually tarry in their diocese. They may dispense from the form of marriage and from all ecclesiastical impediments (excepting the im- pediment arising from the Holy Priesthood and from affinity in the direct line provided the marriage was consummated) whether occult or public, even if they be multiple. This faculty is granted for the spiritual welfare of the parties concerned, and, if need be, for the legitimation of offspring. If this privilege is used to dispense from the impediment of disparity of wor- '^ LJtt. eneyel. S. C. S. OfC., 20 f ebr., 1888 ; Collectanea, n. 1685. '^S. C. S. Off., 18 mart., 1891; Collectanea, n. 2188. "< Op. ait., p. 228. '"' Decrees of Collectanea, nu. 1263 ; 1264 ; 1271 ; 1273. Impediment of Disparity of Worship. 177 ship, its use should be preceded by the giving of the cautiones."" Under the same circumstances, in ease an immediate recourse cannot be had to the Ordinary, a parish priest, or, when the case is very urgent, any priest who happens to be present,'" enjoys the same ex- tensive power. For the internal forum (in the act of sacramental confession) the confessor may make use of the same extensive faculty.'^^ The priest who has exercised so extraordinary a power in the external forum must without delay make it known to the Bishop, and must note it in the marriage register.'^" The wording of the Canon 1043 allows one to infer that under the circumstances therein related a Bishop or a priest may not only dispense from the impediment of disparity of worship, but may also lend his passive presence to the marriage, notwithstanding the fact that the cautiones are not given. This extreme leniency of the Church should be extended only as the last resort, namely, when all efforts made towards prevailing on the parties to give the cautiones prove abortive. 256. A decision of the Holy Office rendered on Sep- tember 16, 1824, in doubtful matrimonial cases sub- mitted by the Bishop of Quebec, discloses the special effect possessed by a dispensation from the impedi- ment of disparity of worship. The instruction specifies that: The Church in dispensing a Catholic from the impediment of disparity of worship with the view of permitting his marriage to an infidel, intends to re- move those impediments also from which the infidel is exempted.'^" This automatic dispensation from co-ex- isting impediments was restricted to relative impedi- "" Cod. Idr. Can., Can. 1043. '" Op. cit., Can. 1098, n. 2. «» Op. cit., Can. 1044. "• Op. at., Can. 1046. "'Acta S. Sedis, vol. XXV, p. 584; Gasparbi, op. cit., n. 672; Wernz, op. cit., n. 510; De Becker, op. cit., p. 228; De Smet, op. cit., n. 291. 178 The New Church Law on Matrimony. ments and to those only from which the Church dis- penses. Thus the exemption was not extended to the impediments of vow, Holy Orders, affinity or consan- guinity in the direct line, nor to consanguinity in the first degree of the collateral line. Since in the new Code an emphasis is laid on the fact that both parties must be competent, and since no such special effect is attributed to a dispensation from this impediment, it would seem that the above instruction has been de- prived of its significance. 257. As we have already stated, this dispensation is not given unless all the requisite promises have been made previously by both the Catholic and the infidel party who are about to enter into marriage. But it must be borne in mind that the mere promises do not suffice in themselves. The Holy See insists that the Ordinaries and the pastors of the flock have a moral certainty as to their actual fulfillment ^" and that they watch vigilantly that the promises be not disre- garded.^^^ Sometimes the infidel party feigns a willingness to subscribe to these conditions in order to obtain the necessary dispensation. But it might be discovered subsequently that he was in bad faith, for, the dispen- sation having been obtained, he retracts what he pre- viously promised. If it can be proved that at the time the promises were made he had no serious intentions of complying with them, then the dispensation would be invalid. If he meant to give the cautiones when the dispensation was applied for, but subsequently re- tracted, then canon 41 finds application. The removal of the impediment and the validity of marriage would require that, as a conditio sine qua non, his intention of keeping the cautiones should be expressed at the "' Cod. Iuk. Can., Can. 1061, n. 3. '" Op. cit., Caji. 1064, n. 3. Impediment of Disparity of Worship. 179 time the dispensation is applied, Avhen, namely, the marriage is solemnized. 5. Injunctions Relative to Mixed Marriages. 258. The Catholic consort is bomid by the obliga- tion of endeavoring by prudent means to procure the conversion of the non-Catholic party.^'^ The legisla- tion contained in this canon formerly constituted one of the promises to which the Catholic party was ex- pected to subscribe expressly, and on which the grant- ing of the dispensation was conditioned.'^* This obli- gation does not lose its force by the fact that it is no longer included in, but separated from the conditions explained above. While the Catholic party's readiness to that effect need not be signitied in the petition for dispensation, the law of charity, receiving a special sanction and an added force by virtue of the foregoing ecclesiastical canon, nevertheless continues to oblige him. The former discipline employed the words "pro viribus" to express the effort which the Catholic party was expected to make toward converting the non- Catholic consort. The new legislation supplants those terms with the words "prudenter." By this change the supreme legislator means to emphasize the circum- spection and the discretion which must be exercised in order that the Catholic party may succeed in bringing the dissentient consort to the unity of the faith. A faithful performance of all conjugal duties is \nthout doubt the first and one of the most effective means con- tributing toward the attainment of that end. 259. Though the Church should grant a dispensa- tion from this impediment the contracting parties are "' Op. cit., Can. 1062. ""S. C. S. Off., iustr. (ad Archiep. Quebecen.), 16 sept., 1834; ad 5; instr. (ad Archiep. Coreyren.), 3 ian., 1871, n. 3 ; S. C. de Prop. Fide, instr. (ad. Vic. Ap. Sveciae), 6 sept., 1785; litt. encycl., 11 mart., 1868. 180 The New Church Law on Matrimony. nevertheless forbidden to present themselves either personally or by proxy, whether before or after the marriage, before a non-Catholic minister in order to give or renew their consent while he officiates in his religious capacity.^"^ The laws of some countries im- pose an obligation to give or renew one's consent be- fore a representative of the state as a conditio sine qua non to the gaining of the civil effects of marriage. Should the magistrate of such places be a non-Catholic minister, employed for a purely civil function, the par- ties would not violate this ecclesiastical law by making use of his services. '^^ They would not be permitted, however, either to give or renew their consent before him should his office as a civil functionary and as a minister of a sect be inseparable, and should he officiate in both capacities simultaneously, namely, by one and the same act. 260. If the parish priest is certain that the con- tracting parties will disregard this law, or that they have already transgressed it, he should abstain from witnessing their marriage, unless a very grave cause urges otherwise, and then he must first consult the Ordinary and remove the scandal.^" Such a very grave cause would exist in every case where the fear is present that a civil marriage will be attempted or that the already attempted invalid marriage will be con- summated. It is to be noted that in case the marriage is attempted before the minister of a sect the parties incur an excommunication latae sententiae reserved to the Bishop.^^^ Absolution from this censure must pre- cede the celebration of such a marriage. 261. Besides the foregoing injunctions directed to "' Cod. Iur. Can., Can. 1063, §1. ""Instr. S. C. S. Off., 12 dee., 1888, n. 7; in the new Colleotamea, n. 1696. »' Cod. Iur. Can., Can. 1063, ^2. "" Op. cit, Can. 2319, §1, n. ]. Impediment of Disparity of Worship. 181 the contracting parties the Codex of Piux X inculcates also the duties of the Ordinaries and other pastors of souls when it admonishes them that they (1) should dissuade the faithful to the best of their ability from mixed marriages; (2) should exert every effort not to permit them to be contracted against the law of God and of the Church if they are unable to prevent them altogether; (3) should watch vigilantly over the faith- ful fulfillment of the cautiones which were given in marriages contracted in their own territory or outside it; (4) should be guided in their assistance at such marriages by the instructions contained in canon 1102."^ 262. The duties of the Bishop and pastors as out- lined in the first three points of the foregoing canon need no explanation. It is sufficient to note that the pastor will not consent to witness a mixed marriage until all his efforts to dissuade the Catholic party from such a step prove abortive. If the latter remains im- movable and there is a serious danger that marriage will be contracted outside the Church, provided the parties express a willingness to comply at least with minimum requirements of the law, the pastor should rather assist at their marriage than allow them to re- sort to an action which is contrary to the law of God and of the Church, besides being invalid. 263. Even if the dispensation should be granted the banns of such marriages are not to be proclaimed in the Church, as has already been explained in connec- tion with canon 1026."° Should the Ordinary deem it expedient to make such proclamation, no mention should be made of the religious sect with which the non-Catholic party is affiliated. For the validity of the assistance at such marriages it is required that no "• Ov. at., Can. 1064. "" See this work, n. 108. 182 The New Church Law on Matrimony. extrinsic force or fear should be brought to bear on the pastor in order thus to constrain him to ask and receive the consent of the contracting parties."^ 264. According to an instruction Pius IX ordained on November 15, 1858, that such marriages should take place outside and not within the edifice of the church {extra ecclesiam), and that all religious rites whatso- ever must be barred."- As regards the religious rites the new law conforms to the foregoing decree. Since we treat here de odiosis the word "ecclesia" must be interpreted strictly, in which case it should not be ap- plied to the sacristy or to a private chapel. Such is the meaning of a decision of the Holy Office handed down on January 17, 1877.'" 265. If from the observance of this law grave evils are feared, the Ordinary may permit one or the other of the usual ceremonies, but the celebration of the Mass must always be excluded."* The exclusion of the Mass contains an indirect prohibition against the imparting of the solemn nuptial blessing with the usual prayers found in the Roman Missal, for such a blessing may not be bestowed outside the Mass."" 266. Under ordinary circumstances the Church wants the parish priest to render more than a passive assistance to such marriages since he must ask and receive their consent. By passive assistance is meant the mere presence of the pastor and the witnesses in order to testify to the consent given by the contracting parties. The only official act of the pastor would be the recording of the marriage in the matrimonial register. Should the obviation of serious evils necessitate it the Bishop may, by way of exception, permit all the "■ Cod. Itje. Can., Can. 1095, §1, n. 3. "- Gaspakbi, op. cit., n. 456 ; De Becker, op. cit., p. 264. "' Gaspakbi, op. cit., n. 463. ■" Cod. Iub. Can., Can. 1102, §2. »»0p. cit., Can. 1101. Impediment of Disparity of Worship. 183 marriage ceremonies contained in the ritual including the blessing of the ring and all the prayers, barring always the celebration of the nuptial Mass and the blessing usually imparted in it. 267. It is incumbent on the pastor to validate the marriage as soon as possible should it be invalid either on account of the lack of form or of the presence of some diriment impediment and separation is not prac- ticable as is generally the case. The exacting of the cutomary cautiones ought to be the first step under such circumstances. Then absolution from the censure of excommunication latae sententiae should follow next if the marriage was attempted not before a civil mag- istrate but before a heretical minister. This absolution should be given in foro externa. Only in case the at- tempted marriage is secret and there is no danger of its becoming publicly known, may the absolution be given in foro interno. Should the non-Catholic party refuse the giving of cautiones as long as the Catholic party is favorably disposed and the former is willing to renew his consent, the dispensation may still be obtained for the purpose of convalidating the marriage, especially if there be some children who stand in need of being legitimated. If the non-Catholic party declines both the giving of cautiones and the renewal of consent, re- course should be had to sanatio in radice.^*" 268. It may happen that the Catholic party entered into an agreement whereby she intends to permit the non-Catholic education of the future offspring in the way that is found in some countries where the boys follow the religion of their father and the girls that of their mother. Consequently, both her defection from the faith and her readiness to contract outside the Church are seriously feared. The case may be ren- "' GrASPAHRI, op. cU., u. 468 ; Db Bum; op. cit., n. 257 ; Webnz, op. cit., u.. 588. 184 The New Church Law on Matrimony. dered more difficult by the aggravating circumstance that she will neither retract her previous impious promise nor give the cautiones. In all such cases the assistance of the parish priest must be unfalteringly denied."' Such instances occasionally do occur in prospective marriages between a Catholic and a bap- tized non-Catholic. Because they are of more frequent occurrence in Germany, Bavaria and some parts of Austria and Hungary, a special concession was granted to those countries. Though the Ordinaries of those places cannot dispense from the impediment of mixed religion under the circumstances, they may permit the passive assistance of the priest to witness a marriage which the Catholic party is about to contract in mortal sin."' That such marriages are most reluctantly tol- erated by the Church is manifest from their emphatic denunciation contained in the declaration of Benedict XIV, sent to Belgium and Holland."" 269. The question was asked whether this signal concession is to be restricted to the place for whose special benefit it was granted. The Holy Office, on June 21, 1912, replied: Standum est taxative praece- dentibus S. Sedis ac praesertim s. m. Gregorii PP. XVI (Litt. app. diei 30 aprilis 1841 ad Episcopos Hun- gariae), ad rem concessionibus.^^" Basing their opin- ion on this decision several theologians maintain that in similar cases the Bishop may permit such passive assistance of the parish priest even in places for which the above-mentioned decree was not intended. Bar- '" Cnnc. Plen. Bait. II, n. 338; Putzer, op. cit., p. 342. '" Sabetti-Bakrett, op. cit., n. 903. q. 10; Gaspaebi, op. cit., n. 447: PUTZEE, op. cit., p. 342; Litt. Ap. Pii PP. VIII, 25 mart., 1830 (ad Archiep. Colonien. et ad Epp. Treviren. Paderbonen. et Monastericn.) ; Collectanea, n. 426; Litt. Ap. Gregorii PP. XIV, 30 apr., 1841, ad Episcopos Hungariae; Collectanea, n. 1428; Instruction to the Bavarian Bishops, on Sept. 12, 1834. "» Deelaratio Bened. XIV, 4 nov., 1741 ; Collectanea, n. 1420. '" In the American Ecclesiastical Review, vol. XLVII, p. 331. Impediment of Disparity of Worship. 185 rett ''^ adduces several good reasons in vindication of such opinion. The decree Ne temere, he argues, pre- scribes the presence of a priest as a conditio sine qua non of the validity of the marriage. It is easy to see how the extension of this concession would reduce Hot only the number of invalid marriages, but also the number of those unfortunate Catholics who, owing to the uncompromising attitude of the Church in this mat- ter, betake themselves to a non-Catholic minister for marriage, so that they themselves and their children become lost to the faith. He quotes Lehmkuhl, Priim- mer and Gopfert as advocates of the same extensive interpretation. While the manifold advantages of such interpretation must be conceded, one should not over- look the grave danger which such a concession, if uni- versally applied, would inevitably bring in its wake."^ Therefore, unless the Church should rule otherwise, all such instances, occurring in places to which this privi- lege has not been officially extended, must be referred to the Bishop. The latter should not consent to the passive assistance of a priest Avithout having previ- ously consulted the Holy See, if time permits. If, how- ever, there is periculum in mora it would seem advis- able to grant such permission, rather than suffer the contracting of an invalid marriage, and all the subse- quent evils and sins resulting from it.'" 6. Ecclesiastical Penalty. 270. Those who attempt to contract marriage be- fore a non-Catholic minister incur an excommunication latae sententiae reserved to the Ordinary.'"* It does not matter whether both parties are Catholics or only "' Sabetti-Bakbett, loc. cit.. q. 11. "' Maetin, S. J., The New Decree on Mixed Marriages, in the Ameri- can Ecclesiastical Review, vol. XLVII, pp. 477 flf. "" Gasparri, op. cit., n. 447 ; Feije, op. cit., n. 570 ; Putzer, op. cit.. p. 343. '" Cod. Iue. Can., Can. 2319. 186 The New Church Law on Matrimony. one of them, as is generally the rale. This censure is incurred by all who either before or after marriage have recourse to a non-Catholic clergyman with the in- tention of having him witness their consent in his re- ligious capacity.^"^ Those who contract marriage with the implicit or explicit understanding that one or all their children shall be educated outside the Catholic Church, or knowingly permit their children to be bap- tized by a non-Catholic clergyman, besides incurring a similar censure, are also suspected of heresy."^ If the marriage entered into with such agreement is con- tracted before the priest, the Catholic incurs an excom- munication. The text of this canon is to be interpreted strictly. Therefore, the Catholic who would attempt marriage before a non-Catholic clergyman incurs only one excommunication. He would not incur another censure because the marriage was attempted with an explicit or implicit understanding that one or all of the children should be brought up outside the Church. The word marriage is to be taken here in its strictly canon- ical sense, implying a valid contract. In the case given the marriage being invalid, the understanding with which it is attempted does not occasion another cen- sure. If in such a marriage the consent was given before a priest and subsequently renewed in presence of a non-Catholic minister, the Catholic party incurs a double excommunication.^" The priest applying to the Bishop for the necessary faculties should not fail to make known these facts. One absolution, after the fac- ulties have been granted, will suffice to remove both censures. If a person, suspected of heresy on account of the agreement whose nature is explained above, fails to amend or remove the cause of suspicion within "= Op. cit., Can. 1063, §1. ""Op. cit., CRn. 2319, jl, nn. 2-4. "' Cod. Iur. Can., Can. 2244. Impediment of Disparity of Worship. 187 six months from the time the censure was incurred, he is to be classed as a real heretic and is liable to all the penalties imposed on such.'"'* Any one presuming to contract a mixed marriage, whether validly or in- validly, without the necessary dispensation of the Church, is excluded from all legitimate ecclesiastical acts, and from the sacramentals until a dispensation has been obtained from the Ordinary.'"'** Such persons are not permitted to exercise the functions of adminis- trator in ecclesiastical goods. They are barred from ecclesiastical trials and forbidden to act as judges, auditors, promoters of justice or of faith, defensores vinculi, notaries, chancellors or prosecutors. They can- not be accepted as sponsors at baptism or confirmation, nor may they vote in Ecclesiastical trials, or exercise the right of patronage {ius patronatus) ^°'' 7. Civil Legislation. 271. The impediment of disparity of worship and that of mixed religion in its strictly canonical form have been eliminated from the statutes of the Civil Codes. The Code of Napoleon ignores it entirely."" An imperial enactment issued on February 6, 1875, sup- pressed it in Germany.^"^ In Hungary it met with a similar fate through a recent legislative measure. The civil laws of Austria do not admit the validity of mar- riage between one professing the Christian religion and an infidel. Thus the impediment is invested with a dis- torted form, becoming inherent in the profession of faith, and not in the baptismal character.'"' Such a >•■ Op. cit., Can. 2315. "»0p. cit., Can. 2339, U, nn- 2-4. '""Op. cit., Can. 2256, n. 2; Holweck, Die Mrchlichen Strafgesetze, p. 150, §79, n. 3, Mainz, 1899. ">Db Smet, op. cit., n. 292. "^AiOHNER, Comp. lur. Ecc, $172, note 4, Brixinae, 1887. 103 Ortolan, in the Vacant if Mangenot tUctionnaire du Theol. Cath., art., Disparity de Culte, eol. 1427. 188 , The New Church Law on Matrimony. civil enactment cannot fail to favor apostasy, for, pro- vided one declares himself confessionslos, by this very fact a way is open to him to marry an infidel ; while, on the other hand, a civil impediment of disparity of wor- ship arises between a person once baptized but subse- quently confessing infidelity, and a Catholic. This im- pediment is singularly characterized by Wernz "* aS the Austrian impediment of disparity of worship. The present Austrian legislation still upholds the impedi- ment of Holy Orders, and of solemn religious profes- sion, but it divests the impediment of disparity of wor- ship of its canonical form. It legitimatizes two forms of marriage, namely, a canonical and a civil form. It opens the way to apostasy by enforcing the former only on those who profess the Catholic faith. The mere re- nunciation of faith is sufficient to make one competent to be married according to the civil f orm.^"^ F. Impediment of Holy Orders. (Canon 1072.) 272. The impediment of Holy Orders is. a circum- stance bringing with it an inability disqualifying a cleric constituted in Sacred Orders from contracting a valid marriage,"" or from continuing its licit use should the matrimonial bond have been contracted before his ordination in the Western Church. Among the major orders are to be enumerated: The Episcopate, the Priesthood, the Diaconate, and the Subdiaconate. Some rites of the Oriental Church class the subdiaconate among the minor orders.'"' 273. The impediment of Holy Orders was founded '" Op. cit., n. 513. '*" HiRSCHEi,, in the Arohiv fur hatholisches KirchenrecM, vol. XXX, pp. 252 ff.; Db Smet, op. ait., n. 292; Gasparri, op. cit., n. 624. '"' Cod. Iur. Can., Can. 1072. '"Come. Prov. Alba lul. (1872), p. 88, 90, 142; Synodus Sciarf. (1888), p. 141, 201 flf. Impediment of Holy Orders. 189 on custom which, by specific legislation, became a uni- versal law of the Church. This custom was probably based on the words of St. Paul : " He that is without a wife is solicitous for the things that belong to the Lord, how he may please God, but he that is with a wife is solicitous for the things of the world, how he may please his wife, and he is divided. ' ' "' This scriptural quotation, to which others could be added,^*' furnishes an argument in favor of the state of celibacy which is better suited than that of matrimony to one whose life- task, by virtue of a free choice, is to consist of a special endeavor to promote his own and his fellowmen's spir- itual welfare. For a fuller, history and development of this im- pediment the reader is referred to other sources."" It will suffice to note here that from the earliest ages both the Oriental and the Occidental Church forbade mar- riage to clerics who as celibate were promoted to the priesthood or even to the diaconate.^" 274. The law of Emperor Justinian prohibiting marriage to clerics was subsequently adopted by the Oriental Church at the Synod of TruUo (692) whose sixth canon legislates that no priest or deacon or sub- deacon after his promotion to Holy Orders may con- tract marriage."^ The penalty of deposition was meted out against those who transgressed this law. This "" I Cor. VIII, 32 and 33. '"» Loc. cit., VII, 8. "" Vacandaed, in the Diet, de Theologie, s. v. Celibat; Phillips, in the Kirchenlexilcon, a. v. Colibat ; Zaccaria, Storia Polemioa del Celibato Sacro (Fuligno, 1785) ; Pavy, Du Celibat Ecclesiastique (Paris, 1852) ; Carry, Le Cilibat EccUsiastique (Paris, 1901) ; EoskovAny, Coelibatus et Breviariaim (Pesth, 1861-1890) ; Laurin, Der Colibat der Geistlichen nach canonischen Sechte (Wien, 1880) ; Wernz, Ius Deeretalium, vol. II, n. 295 ff., and vol. IV, n. 391 ff. ; Esmein, Le Marriage en Droit Canonique, vol. I, p. 282 fF. (Paris, 1891) ; Milasch, Das KvrchenrecM der Morgenlandischen Eirche (Mostar, 1905). '" Webnz, op. cit., n. 391. '" Gasparri, op. cit. n. 591 ; Santi-Leitner, op. cit., lib. IV, tit. VI, n. 5; Wernz, op. cit., n. 391. 190 The New Church Law on Matrimony. penalty was not only sanctioned but even enhanced when an excommunication latae sententiae was added to it by Benedict XIV in his constitution issued for the Italo-Greeks.'" The same decree ordains that all mar- riages contracted after the reception of priesthood, of deaconship or of subdeaconship are null and void. Similar is the discipline of the Maronites, if one ex- empts the subdiaconate which they do not regard as a major order/^* The same prohibition under the same penalty is emphasized by the Euthenian Synod, but the law confines itself to the priesthood, disregarding the orders preceding it.^" The Provincial Synod of the Roumanians by special legislation declares null and void all marriages contracted by clerics already in major Orders."" The Synod of Scharfa in 1888 legis- lating for the Syrians and the Synod of Alexandria in 1898 for the Copts approached the present discipline of the Occidental Church when they decreed that all candidates for higher Orders should be celibate. 275. This lack of uniformity in the Oriental Church is OA\dng to the fact that the Holy See has failed to legislate specifically, universally and uniformly for all its rites, and in th§ absence of such legislation a con- troversy arose as regards the validity of marriages contracted by deacons and subdeacons. This question finds its practical application in case a schismatic cleric in major Orders, who marries after his promotion to subdeaconship, deaconship or priesthood, wishes to be- come a convert. In practice one should be guided by the instruction of Benedict XIV "^ which the Sacred "'"Etsi Pastoralis," §VII, u. 27; 27 mail, 1742. "* Synodv^ Maronitarum in Monte Libano (1736), p. II, c. XI, §8, n. 9. "" Synodus Zamosoensis, tit. Ill, ^8. "° Synodus Provincialis pro Bumenis (1883), art. XI, sect. I, cap II, «2. '"Const. "Anno Vertente," J12, 19 iun., 1750; Const. "Eo qaamvis tempore," 4 mail, 1745. Impediment of Holy Orders. 191 Congregation of Propaganda repeatedly approved in its decisions. 276. If a cleric of the Oriental rite while in major Orders wishes to contract marriage, he should ask for a dispensation. This the Holy See does not always deny.'" If the validity or the invalidity of a marriage already contracted is questioned the Holy See should be consulted in each individual case. 277. The law of the Western Church, forbidding marriage to clerics in major Orders does not present the same vagueness."' While up to the eleventh cen- tury there might have been a doubt as to its intrinsic force, this doubt gradually began to disappear after the Eoman Synod (1049) held under Leo IX. It remained for the First Lateran Council (1123) to pronounce invalid marriages of high ecclesiastics who had re- ceived subdeaconship.'*" This law was subsequently more clearly defined by the Second and the Fourth Lateran Council, and was again accentuated by the Council of Trent.^*^ 278. Benedict XIV decreed that neither celibacy nor the duty to recite the Breviary can be imposed on a cleric who was promoted to Holy Orders before he reached the age of puberty, unless after that age he either expressly or tacitly embraced the obligations at- tached to the Order he received."' He is not quite so indulgent toward the cleric who was constrained either by force or by grave fear to receive major Orders."^ There was ground for controversy whether under such conditions the ordination was conferred validly or not. "' Qasparei, op. cit., n. 594. "' C. 1, 2, X, qui clerici vel voventes matrimonviim contrahere possunt, IV, 6; c. 1, 4, X, de cleriois coniugatis, III, 3; c. un. de consanguimitate et affimitate, IV, in Clem. i!o Thurston, in the Catholic Encyclopedia, art.. Celibacy. '" Sess. XXIV, Ve sacram. matrim., can. IX. '™ Const. "Eo quamvis tempore," 4 mail, 1745, §23 sq. '" Loc. cit., $21; and De Synodo Dioecesana, lib. XII, cap. IV, n. 2. 192 The New Church Law on Matrimony. The validity of the ordination being questioned, the arising obligation was also doubtful. 279. The new law ordains that a cleric promoted to Holy Orders under coercion, owing to grave fear, may be reduced to the state of the laity by the sentence of a competent judge, provided the coercion is proved and it is likewise manifest that he never acquiesced in his ordination, not even tacitly by exercising the rights the Order bestows and intending thereby to submit to the obligation. In possession of such evidence the cleric in question is freed from the obligation of celibacy and of the recitation of canonical hours.^** Notwithstand- ing this definite legislation it would seem that if a cleric ordained under coercion should contract mar- riage while the sentence was pending, the validity of such a marriage should be upheld on the principle that in dubio standum est pro valore matrimonii}^^ 280. The coercion and the subsequent lack of acqui- escence in the ordination must be proved by a juridical process clearly defined in the law.'^^" In cases in which the obligations contracted by ordination are impugned, or in which the validity of the ordination is challenged, a libellus must be sent to the Sacred Congregation of the Sacraments, or to the Holy Office should the ordi- nation be questioned on account of a substantial defect in the sacred rite. This preliminary step having been taken the Sacred Congregation will decide whether the cause is to be treated by a judicial process, or by way of a disciplinary measure. Should the decision favor the former course the Sacred Congregation will entrust the cause to the tribunal of the diocese to which the cleric belonged at the time of his ordination. "*CoD. luE. Can,, Can. 214. '"Op. cit., Can. 1014; Suarbz, Ve virt. et de stat. relig., tract. VII, 1, 9, cap. XVII, n. 11; Ballbrini, Op. theol., t. IV, p. 181 sq.; San- chez, op. cit., lib. VII, disp. XXVII, n. 9. "" Cod. Iub. Can., Can. 1993. Impediment of Holy Orders. 393 Should the ordination be impugned on account of a substantial 'defect in the sacred rite, the case will be committed to the care of the diocese in which the ordi- nation took place. Should the decision favor a re- course to the disciplinary measure the Sacred Con- gregation itself will settle the question after the com- petent tribunal of the Curia instituted the proper process in order to place itself in possession of all the necessary information. The validity of the ordination may be impugned either by the cleric himself or by the Ordinary to whose diocese he belongs or in whose diocese he was ordained. The absolution from the ob- ligations attached to the clerical state must be asked by the ecclesiastic himself.'*^ The defensor of the bond arising from Sacred Orders enjoys the same rights and has the same duties as the defensor vinculi matri- monialis."^ Even if the action was instituted only against the obligations imposed by Sacred Orders and not against the validity of the ordination, the cleric ad cautelam is to be barred from the exercise of the Order."' Freedom from such obligations is not to be presumed until two judicial sentences agreeing in the same decision have been handed down by the compe- tent ecclesiastical court.^°" 281. This impediment is of ecclesiastical origin; therefore it is in the power of the Church to dispense from it. Giovine '"^ enumerates several cases in which such a dispensation was actually granted by Benedict IX, Pius VII, and other Pontiffs, in behalf of ecclesi- astics below the Episcopate. The contrary opinion of St. Alphonsus, holding that the Church cannot lift the '"Op. cit., Can. 1994. ■" Op. cit., Can. 1996. '"Op. cit., Can. 1997. '"Op. cit., Can. 1998. '"Op. cit., 5245; litt. encyel. S. C. S. Off., 20 febr., 1888; Cod. Iur. Can., Can. 1043. 194 The New Church Law on Matrimony. impediment arising from the Order of the Holy Priest- hood, must be rejected as untenable. '°^ While strictly speaking the Church could dispense even in the case of a Bishop, history does not show that it has ever exer- cised such a right either in the Oriental or in the Occi- dental Church.^^' 282. The present law disqualifies a ^leric consti- tuted in major Orders from contracting a valid mar- riage, and imposes on him the obligation to observe chastity.^'* This inability to contract marriage validly does not cease even if the cleric as the consequence of a crime be penalized by a permanent irregularity, or suspension, or deposition, or even degradation. The impediment of Holy Orders retains its force even if such an ecclesiastic should be reduced to the state of a layman,^^^ and subsequently should become a heretic or a schismatic or an apostate. Clerics attempting mar- riage, even if it be only a civil ceremony, incur an ex- communication latae sententiae simply reserved to the Holy See. If after due admonition they continue in their obstinacy, they are to be degraded, and ipso iure all their offices become vacant.^'" VI. The Impediment of Religious Profession. (Canon 1073.) 283. No marriage can be contracted validly by a religious who embraced solemn vows or such simple vows as have the effect of nullifying marriage by virtue of a superadded force communicated to them through a special decree of the Holy See.^''' These solemn vows '" Theol. Moralis, Be Sacramento Ordinis, lib. VI, n. 808. "' Santi-Leitner, op. cit., lib. IV, tit. VI, n. 6; Gaspabri, op. cit., n. 589. '" Cod. Iub. Can., Can. 132. "= Op. cit., Can. 213, $2. '" Op. cit., Can. 188, n. 5 ; Can. 2388. »'0p cit., Can. 1073. Impediment of Religious Profession. 195 are chastity, poverty and obedience. It is only the first of the three that has a direct bearing on the question under consideration. The vow of chastity finds its justification in the Sacred Scripture. The example and the counsel of the Founder of Christianity served as incentives for the Christians living even in the time of the Apostles, to bind themselves by a vow of chastity."' The words of St. Paul not only approved such a resolution but even extolled it."' It was therefore nothing surprising that as early as the third century history recorded two classes of individuals who publicly pledged themselves to observe a vow of chastity.^"" These were called vir- gines velatae and virgines nan velatae.""^ TertuUian "^ mentions also a third class, namely, virgins who took a secret vow of virginity. 284, While the breaking of a vow entailed severe ecclesiastical penalties, it is a controverted point whether even before the First Lateran Council it pos- sessed a universal force invalidating all marriages. There can be no doubt that by virtue of particular law enforced in certain localities the vow did produce such an effect even as early as the beginning of the seventh century.^"' A universal law drawn at the First Lateran Council (1123) declares all marriages contracted by men belonging to a religious order null and void,^°* and the Second Lateran Council (1139) makes a similar declaration, as regards the religious communities of women.^"^ After the distinction between the simple ••• Matt. XVI, 24 ; XIX, 11 and 12. '•• I. Cor. VII, 7, 8, 25 ff. *" Vermeersch, in the Catholic Encyclopedia, art.. Profession, Re- ligious. "' Thomassinus, p. I, lib. Ill, c. 42. ™ De velamd. virgmihws, cap. XIV. ""•Cap. XIV, Cone. Paris. (615); cap. II and III, Cone. Bom. (721); cap. VIII, Cone. Trosl. (909). ""Can. VIII, dist. XXVII. "»• C. 40, C. XXVII, q. 1. 196 The New Church Law on Matrimony. and the solemn vow came into existence, around the time of Gratian, the solemn vow was generally asso- ciated with the religious professed in an order. This gave rise to a doubt as regards the force of a simple voAV. Solution was offered by the decree of Boniface VIII who endowed with a force nullifying marriage only those vows which were taken solemnly in the re- ception of Sacred Orders, or in the profession, whether express or tacit, made in a religious community, pos- sessing the approbation of the Holy See.^°° The foregoing decree of Pope Boniface was subse- quently emphasized by the Council of Trent which anathemizes those who maintain that a cleric in Sacred Orders or one who has taken a solemn vow of chastity may contract marriage validly.^" 285. The new law while legislating profusely for religious congregations introduced no fundamental change in this respect. The determination whether a vow is solemn or simple depends entirely upon its recognition as such by the Church.^"' In concrete cases the juridical recognition presupposes that the Church has permitted a certain religious institute to bind its members by solemn vows, and that all the conditions required for the validity of such vows have been verified.^"' Therefore the solemnity of a vow is deter- mined by its effects rather than by the external rite which is the means of its administration. 286. The solemn vow may affect marriage in two ways, namely, by nullifying it, should it be attempted after the vow has been taken, or by dissolving it, should the vow be taken after a non-consummated marriage.^" ™ C. un. de voto et voti redemptione, III, 15, in VI°. ^'' Sess. XXIV, De sacram. Matrim., can. IX. ^»» OOD. lUR. Can., Can. 1308, §2. """Papi, Meligious Profession, p. 9 (New York, 1918), ■""Cod. Iur. Can., Can. 1119. Impediment of Religious Profession. 197 287. The simple vow is only an impedient impedi- ment to marriage unless taken by the Scholastics of the Society of Jesus, in which case by virtue of special legislation it constitutes a diriment impediment."' Some maintain that a simple vow of chastity taken by a woman consenting to her husband's promotion to the Priesthood, has also the effect of dissolving marriage, regardless of whether she should contract it before or after the death of her former consort, if he was actu- ally ordained."- The opinion permitting a valid mar- riage after the consort's death is, however, more prob- able. Since all agree that such a marriage would be illicit a dispensation should be obtained from the Holy See from the taken vow. Should the marriage be con- tracted without such a dispensation, unless the Holy See declares otherwise, its validity must be upheld."' 288. It must be borne in mind that only the solemn religious vows possess the effect explained above, namely, when taken and administered in conformity with the new law. The conditions of validity are clearly specified:"'' (1) The candidate must have the required age, namely, the age of twenty-one years for a perpetual profession, be it solemn or simple;"^ (2) Admission to the profession must be given by the law- ful superior according to the constitution; (3) The profession must be preceded by a valid novitiate ; ^" (4) It should not be the result of coercion, fear or fraud; (5) It must be explicit and administered by the ^" Gregoeius XIII, const. "Ascendente Domino," 25 maii, 1584, J22. ^" Santi-Leitner, tit. VI, De voto, n. 8 ; Sanchez, VII, disp. 40 ; Benedict. XIV, De Synodo Dwecesana, lib. XIII, cap. XII, n. 16 ; see also De Becker, op. cit., p. 152 ; SCHMALZGRfiBER, ad tit. qui clerici vel voventes, n. 67; De Smet, op. cit., n. 284, note; c. 10, X, de conver- sions coniugum, III, 32. '" Wernz, op. cit., n. 380 ; Gasparei, op. cit., n. 576. ^"CoD. lUR. Can., Can. 572. '" Op. cit., Can. 573. '" See canons 542 and 555 of the new Code. 198 The New Church Law on Matrimony. legitimate Superior or his delegate; (6) It must be preceded by a temporary and simple profession."' The impediment of religious profession is of ecclesi- astical origin, for the efficacy of the vows, whether simple or solemn, is dependent entirely on the legisla- tion of the Church. This doctrine is contained in the above-quoted decree of Boniface VIII, and practically all leading canonists admit that the Holy See may dis- pense from a solemn vow; a fortiori from a simple vow."* Such dispensation has actually been granted on several occasions. The best known instance is per- haps the indult of Pius VII, who at the beginning of the nineteenth century "sanavit in radice multarum monialium et monachorum sacrilega matrimonia." "' 289. In urgent danger of death the Bishops and the priests, as already explained, have the power to dis- pense even from a solemn vow, provided it is detached from the Priesthood.^^" Outside such danger only the Roman Pontiff may dispense, unless the Ordinary en- joys a special indult. A very grave cause involving individual or public welfare is usually required for such a dispensation."'^ 290. The Clementinae record an excommunication fulminated against those men and women of religious communities who attempt marriage notwithstanding the fact that they are solemnly professed."^ Pius IX reserved this excommunication latae sententiae to the Ordinaries,"^ and the Codex of Pius X qualifies it as excommunicatio simpliciter reservata Sedi Apos- '" Op. cit., Can. 574. ''"St. Alphonsus, op. cit., vol. Ill, n. 256; Giovine, op. cit., §241; n. 2; St. TSomas, 4, Sent., dist. XXXVIII, q. 1, ad 3; Wernz, op. cit., n. 381 ; Db Becker, op. cit., p. 152. '" Gasparri, op. cit., n. 567. ^'°C0D. lUR.. Can., Can. 1043; see this work, n. 151 ff. ^Gasparri, op. cit., n. 508; Webnz, op. cit., n. 381. "^ C. un. de consanguinitate et afflnitate, IV, in Clem. '" Const. "Apostolicae Sedis," 12 Oct., 1869, JIII, n. 1. Impediment of Abduction. 199 tolicae."* To the Bishop is reserved only the excom- munication latae sententiae incurred in consequence of a marriage attempted by those who took perpetual simple vows in a religious community."^ Besides this excommunication such religious bound by solemn or simple vows, whether perpetual or temporary, incur irregularity, which is communicated to the other party attempting to contract marriage with them,^^° VII. The Impediment of Abduction. (Canon 1074.) 291. Abduction considered as a matrimonial im- pediment consists in a criminal act whereby one vio- lently and with a matrimonial intent detains a woman in a place where she lives or to which she repairs of her own volition ; or whereby with the same intent one vio- lently carries her away from a safe place where she is freft to a morally different place where she is subject to the direct or indirect control of the abductor until she consents to marry him. The authors generally dis- tinguish between raptus seductionis and raptus vio- lentiae. The former is abduction by seduction, popu- larly styled elopement. The latter implies violence em- ployed by the captor in order to accomplish his end. Abduction by seduction does not give rise to a diri- ment impediment, for it presupposes that the woman signified her willingness both to the flight and to the marriage, regardless of the fact whether her consent was spontaneous or the result of flattery, allurement or cajolery. In this case should the woman be under age an injustice is offered to the non-consenting parents or guardians, but the Tridentine decree on which this law '^ Cod. Iub. Can., Can. 2388. '^^ Op. cit., Can. 2388, $2. ™ Op. cit., Can. 985. 200 The Neiv Church Law on Matrimony. is based does not take their will into consideration, its purpose is merely to safeguard the freedom of the woman in the choice of her consort. This freedom about Avhich the Church is so solicitous is threatened only in the case of detention or abduction by violence ; hence, either of those acts would induce the impedi- ment. 292. The impediment of abduction would arise in any of the following cases : (1) When a woman is seized against her will and transferred into another place, not secure, without consenting to a marriage to which the abductor endeavors to coerce her, and for that rea- son detains her by force physical or moral (fear or fraud being equivalent to force) ; (2) When a woman yielding to fraud or enticement consents to repair to another place, but with another intention than matri- mony, and in" that place she is subsequently detained by the abductor who uses physical or moral coercion to force her into marrying him; (3) When a woman al- ready espoused to the abductor, is carried away vio- lently to a place unsafe for her, and objecting both to the abduction and to the marriage is detained there until she consents. 293. The perusal of a few historical facts will suffice to acquaint the reader with the development of this impediment. Some maintain that even the untutored tribes stigmatized abduction as something dishonor- able, and for that reason inaugurated the custom of paying for the woman they wished to marry."^ Though this statement may be impugned it is certain that the Jewish law did not favor marriages between the ab- ductor and the abducted."' Rock maintains that the old Roman law {lus Vetus) permitted the solemniza- ^"Webnz, op. cit., n. 278. '"Demt. XXII, 25 ff.; c. 8, 9, C. XXXVI, q. 2; SCHEGG, Bibl. Archeolog., p. 643 ff. Impediment of Abduction. 201 tion of marriage between the raptor and the rapta.^"^ Constantine the Great forbade such marriages and Justinian decreed a capital punishment against those who perpetrated the crime of raptus.^^° Owing, on the one hand, to the ample provisions made by the Roman law to punish the crime of abduction and, on the other hand, to its infrequency among the early Christians, the Church was not constrained in the first three cen- turies to legislate on this point.^" In the fifth century the Council of Chalcedon (451) in canon 27 anathe- matized those who resorted to abduction in order to procure a wife, and degraded them if they were clerics. Leo VI contented himself with approving the former laws in all their rigor, while the old Spanish law in- flicted a capital punishment on the abductor who also ravished the woman. In the ninth century abduction was associated with a kind of impedient impediment ^^^ perpetual by its nature.^^^ The law of Innocent III "* favored the wife-captors inasmuch as it permitted them to contract marriage with the rapta even while she was still in their power, provided she consented.^'^ One commendable feature of this law was that the consent was not to be presumed, it had to be proved. The Innocentian law divested the impediment of abduction of its- identity by making it practically indistinguish- able from the impediment of vis et metus. 294. An important change in the history of this im- pediment was inaugurated by the Tridentine laAv, The Fathers convened at the Council of Trent, seeking a ™ In the Catholic Encyclopedm, art., Ahditction. '""L. 1, Cod. Theod. de raptu virg. IX, 24; L. un. Cod. de raptu virg., IX, 13. '" St. Basil., Epistol. canon, secund. ad Amphiloch., c. XXII and XXX '" d 4, 10, 11, C. XXXVI, q. 2. "' De Becker, op. cit., p. 68. '" C. 7, X, de raptoribus, V. 17. =" Qasparbi, op. cit., n. 539. 202 The New Church Law on 'Matrimonif. remedy for the evils resulting from the frequency with which the crime of abduction was committed suggested that 'the impediment be made diriment. The result was the following decree as incorporated in th« official acts : Between the raptor and the rapta no marriage can take place as long as the latter is under the control of the former. Should the abducted, after having been sepa- rated from the abductor and conducted to a safe and free place, consent to take the raptor for her husband, he may marry her; nevertheless, the raptor with all his counsellors, abettors and accomplices becomes by law excommunicated, declared forever infamous and incapable of acquiring any dignities, and, should they be clerics, they are to be deposed. The raptor is fur- thermore obliged, whether he marries the rapta or not, to invest her with a decent dowry whose amount is left to the decision of the judge.^^^ 295. The foregoing discipline, in its substance, re- ceives the official recognition of the Church by being promulgated in the Codex of Pius X. The canon em- bodying the new law reads : There can be no marriage between the man who is a raptor and a woman ab- ducted with matrimonial intent, as long as she remains in the power of the abductor.^'' Should the rapta be separated from the raptor and conducted, to a safe and free place the impediment ceases, provided she con- sents tp have him for her husband.^'' As regards the nullity of marriage the violent detention of a woman is to be regarded equivalent to abduction, when, namely, a man violently detains a woman with matri- monial intent in a place where she tarries or to which she repairs of her own free will.^^' '" Sess. XXIV, De reform, matrim., cap. VI. ^" Cod. Iur. Can., Can. 1074, §1. '" Op. cit., loc. cit., §2. '" Op. cit, loc. cit., J3. Impediment of Abduction. 203 296. The following pages will be devoted to the elucidation of the foregoing law. 1. Abduction in the former discipline had to be com- bined with violence, namely, the woman had to be trans- ferred reluctantly from a place in which she was free to another place controlled by the raptor either directly or indirectly. It was immaterial whether the abduction was accomplished by the principal or by his agent. The impediment did not arise unless the removal from a place a quo to a morally different place ad quern was realized in every case.^*" The impediment was induced even if the woman in question consented to the flight but not to the marriage,"' but not so when she acqui- esced in both."^ Even moral force sufficed to give rise to this impediment, for threats, grave fear or fraud were equivalent to physical force. It was a contro- verted question whether the impediment arose in con- sequence of what used to be called an act of sequestra- tion, namely, when the woman went to a certain place of her own volition and- subsequently violence was used to coerce her to marriage. Much of the doubt that formerly existed disappears owing to the definiteness with which the new law legislates on this point. Ac- cording to the present discipline the change of locality is only one of the causes giving rise to this impedi- ment, the other cause is a violent detention with matri- monial intent regardless of the place where the woman is detained, even if it should be her own home. 2. Any woman, whatever her character, even one's own betrothed may be the occasion of the impediment of abduction, if the other conditions are verified. The impediment is not contracted should a woman abduct a man, but she would incur the same penalties as the ""S. C. C, Herbipolen., 24 apr., 1858; 18 iun., 1859. =" S. C. C, Olomucen., 14 mart., 1772. '''^S. C. C, Mediolanen., 24 aug., 1661. 204 The Neiv Church Law on Matrimony. abductor if she should participate in his crime as an abettor or a procurator. A public woman when ab- ducted is presumed volens explendae libidinis causa, therefore, her unwillingness is to be proved.^" 3. Removal from one place to another formerly con- stituted a condito sine qua non of the impediment of abduction. The present discipline has been consider- ably simplified by the fact that the law lays main stress not on the change of locality but rather on the fact of violent detention with matrimonial intent. 4. Matrimonial intent must enter into the abduction in order that an impediment may be contracted. Shoiild the crime be perpetrated for another purpose as, for instance, robbery, gratification of lust, revenge, etc., the impediment would not arise. In doubt the matri- monial intent is always presumed. In the former dis- cipline the initial motive (which was difficult to prove) of abduction had to be marriage. In the new discipline the initial motive, whatever its nature, is not a decisive factor, for the impediment is contracted by virtue of a mere act whereby a woman is detained by force pro- vided the final motive is marriage. This wise change was suggested by the difficulty encountered in imput- ing the statement of an abductor who in his endeavor to liberate himself from the incurred penalty would niake the assertion that his initial purpose in commit- ting the crime was not marriage. 297. The impediment arises between the raptor and the rapta. The abettor or the procurator would incur the penalty but would not contract the impediment, un- less after he abducted the woman for someone else he would detain her by force and coerce her to marry him instead of the principal agent. Since the impediment is of ecclesiastical origin it does not bind infidels (provided neither vis nor metus '" Gasparri, op. cit., n. 547. Impediment of Abduction. 205 is present) unless the civil law conforms to the Church law. It does, however, regard all marriages in which at least one of the parties, the man or the woman, is baptized. 298. The Church very seldom dispenses from this impediment, not only because the presumption is in favor of coercion but also because by setting the woman free the marriage can be contracted without a dispensation.^" With so deep a detestation does the Church regard this crime that even dispensations from other impediments she conditions on the clause : ' ' Pro- vided the woman was not abducted for that (namely, matrimonial) purpose.""^ Should the impediment of consanguinity exist between the raptor and the rapta a dispensation conditioned on such a clause would fail to remove it though subsequently to the abduction the woman was in loco tuto constituta. The faculties is- sued on February 20, 18^8, conferring the power to dispense from public impediments in urgent danger of death, include the faculty to dispense from the impedi- ment of abduction. The new law bestows on the Bishops and priests the same power by virtue of canon 1043."° 299. The penalty specified by the Tridentine law is somewhat modified by the neAV legislation. The new law omits all mention of dowry. One may therefore legitimately conclude that such an obligation will no longer be imposed on the abductor. Formerly an ex- communication latae sententiae nemini reservata was fulminated against the perpetrator of such a crime. The new law reads: He who with matrimonial intent ■"C. 10, C. XXXVI, q. 2; Beg. 27, B. J. in VI°; S. C. S. Off., instr. (ad Ep. Albaniae), 15 febr., 1901; S. C. de Prop. Fide (C. P. pro Sin- Coehin-chin.), 11 febr., 1804; 22 nov., 1860. '"PuTZER, Commentarmm in Facilitates Apostolicas, n. 126 (New York, 1893). =" See this work, n. 151 ff. 206 The Neiv Church Law on Matrimony. or with a motive to pander to his lust abducts a re- luctant woman whether by force or fraud, or a woman who being a minor consents while her parents or guardians object and dissent, is by law excluded from all legitimate ecclesiastical acts, and should be pun- ished also with other penalties proportionate to the gravity of his crime.^" 300. All those who in accordance with canon 2209 co-operate in abduction with the principal are subject to the same penalties as the principal himself."' The priest and the witnesses before whom the raptor at- tempts to contract marriage while the rapta is still under his control do not incur these penalties, for they are not instrumental in his crime of abduction but only in his marriage. They would be liable to the same pun- ishment only in case they abetted him by promising to witness his marriage should he succeed in his project. To impugn the validity of a marriage contracted under such circumstances is the right of the abducted woman, but not of the raptor. She ought to avail her- self of the earliest opportunity to bring to the knowl- edge of the proper ecclesiastical authority the cause that might be advanced for the nullity of her wedlock. VIII. The Impediment of Crime. (Canon 1075.) 301. The impediment of crime is a circumstance oc- casioning an inability which precludes the possibility of a valid marriage between a man and a woman when certain conditions specified by law have been verified in their mutual guilt of adultery or of homicide result- ing in the death of the consort of either. The new law legislates ^*^ that no marriage can exist between those : "" Cod. Iue. Can., Can. 2353. ^ Op. cit., Can. 2231. "' Cod. Iub. Can., Can. 1075. Impediment of Crime. 207 (1) Who, while bound, by one and the same legitimate matrimonial bond committed adultery and mutually promised to marry or actually attempted a civil mar- riage; (2) Who while bound by one and the same legitimate matrimonial bond committed adultery and then either of them became guilty of the murder of his consort; (3) Who, by mutual physical or moral deeds, caused the death of a consort, even if they are free from the guilt of adultery. 302. The early Roman law prohibited marriage be- tween an adulterer and an adulteress, which prohibi- tion was endowed with an invalidating force by the law of Justinian.^"" The statement of Devoti ^" that the early Church canonized this Roman law is untenable, for the early canons fail to reveal the existence of a diriment impediment of crime.^" The first intimation of such an impediment comes from the time of Pope St. Leo. The Council of Tribur (895) decreed: "Nullus ducat in matrim,onium, quam prius polluit per adulterium." ^^^^ This law was subsequently incorpo- rated in the various collections including the Gratian.^"* Gratian records only two phases of this impediment, namely, when it arises from adultery linked with machination against the life of the husband of the adulteress,^^^ or with a promise of marriage to be con- tracted after the death of her husband. Probably on the ground of the principle "plus est ducere quam /idem dare," Clement III (1187-1191) '"" added the ™L. 21, $11, 1. 40 ff. ad leg. luliam de adulter.; L. 13 ff. de iis quae ut indign., Nov. 134, cap. 12. '"Lib. II, §140. '"Cap. IX, Cone. Illibent. (300-306); C. 8, C. XXXII, q. 7; c. 2, C. XXXI, q. 1. '" C. 1, C. XXXI, q. 1. '" C. 4, C. XXXI, q. 1. =" C. 3, 0. XXXI, q. 1. """ C. 4, X, de eo qui duxit in matrvmonium, quam ■polluit per adul- terium, IV, 7. 208 The New Church Law on Matrimony. third cause from which this impediment drew its origin, namely, adultery coupled with an attempted marriage. Finally, his successor Celestine III (1191- 1198) introduced the fourth phase of this impediment, namely, murder of a consort procured by mutual con- spiracy even if adultery did not intervene.^" Gregory IX (1227-1234) was the next PontifP who had occa- sion to legislate on the impediment.^^* To a doubt sub- mitted to him for solution he answered that the im- pediment of crime, does not arise from the mere promise of marriage nor from the mere attempt at marriage, nisi prius vel postea vivente coniuge adul- terium intercessit.^^^ The Council of Trent refrained from legislating any further on this impediment, and the Code of Pius X simply approves the traditional discipline as handed down by the Decretals. 303. Though the new law is couched in clear terms, it is not sufficiently comprehensive to solve all doubts that in the past arose in connection with this impedi- ment. The force of this statement will be better ap- preciated by submitting to individual consideration the various causes which are instrumental in giving .rise to the impediment of crime. 304. I. The new law declares that no marriage can exist between those who, while one and the same legiti- mate matrimonial bond existed, committed adultery and promised to marry each other or attempted a civil marriage.^*" To become a partial contributory cause of this impediment the adultery must be : 1. Eeal and not merely putative, namely, one of the accomplices must be bound by a matrimonial bond ob- '" C. 1, X, de conversione infidelium, III, 33. "" 0. 8, X, de eo qwi duxit in matrvmonimm, quam polluit per adulte- rvwm, IV, 7. "•"ESMEIN, op. cit., t. I, p. 384 ff.; t. II, p. 65 ff.; Wernz, op cit., n. 518. '"Cod. Iur. Can., Can. 1075, Jl. Impediment of Crime. 209 jectively valid. It is immaterial whether such a mar- riage is consummated or not, nor would the guilt be lessened by the fact that in consequence of a civil divorce a separation a toro et mensa was obtained. 2. Consummated, namely, resulting from a perfect copula in se fitted for generation. An incomplete copula, or sodomy or onanism would not suffice, for in criminal cases the specified penalty is not incurred unless the crime is completed. The attempt at the crime is not penalized with the same rigor as the crime itself, unless the law so ordains. In case of doubt whether the copula was perfect or not, both forums presume the former.^"* 3. Formal on the part of the two accomplices, namely, both parties must be aware of the fact that one of them is married, for the law presupposes that both offend against one and the same matrimonial bond. Consequently, the impediment would not arise if each of the offenders would have a knowledge of only his own marriage without being aware of the marriage of his accomplice. An ignorance of such a fact, unless it is affected, would excuse one from con- tracting this impediment even if all the other condi- tions should be verified. There is a controversy whether vincible ignorance, called crass or supine, which is gravely culpable, would excuse under the cir- cumstances. The majority of authors take the affirma- tive side of the question.^*^ 305. Adultery, even if it should possess all the characteristics pointed out above, would fail to induce the impediment of crime unless accompanied by the promise of marriage. This promise is not a partial '" Gasparri, op. cit., n. 647. """De Becker, op. cit., p. 166; Schmalzgrubeb, %. t., n. 11; Gasparri, op. cit., n. 647 ; Sanchez, op. cit., VII, disp. LXXIX, n. 35 ; St. Al- PHONsus, op. cit., vol. VI, n. 1036; D'Annibale, vol. Ill, n. 439. 210 The New Church Law on Matrimony. contributory cause to the impediment of crime, unlesb it is: 1. True, differing from a desire or an intention by the fact that it is manifested externally. In case of doubt neither the internal nor the external forum pre- sumes it to have been serious and true. 2. Manifested externally to the accomplice, who in turn employs such Avords or signs, or displays such conduct as can be interpreted as a positive acceptation of the proposal. One may not have recourse in this connection to the principal "qui tacet consentire videtur." Some canonists insist so strongly on the express acceptation that they require even a re- promise, though there is a controversy whether a re- promise is a conditio sine qua non. The express ac- ceptation, in the opinion of some, implicitly contains a re-promise. Should such a re-promise not be included, or should it be excluded, the impediment would not arise or would be doubtful, to say the least.^"^ 3. Absolute, for conditional promise does not suffice to give rise to the impediment unless the condition is such that its fulfillment is likely before the dissolution of- the matrimonial bond. The impediment takes effect as soon as the past or present event on which the promise is conditioned is known to have actually taken place. It is contracted even by virtue of a promise con- ditioned on de futuro necessario, impossibili aut turpi. If the promise is de futuro contingenti ac honesto, the impediment arises provided the condition was verified before the dissolution of marriage; not so, should its fulfillment take place only after the matrimonial bond was dissolved. This opinion is to be held against Sanchez ^'^^ and a few others. 4. Matrimonial, namely, its object should be mar- '"" Wernz, op. cit., n. 524, note 35 ; Gaspabki, (?p. cit., n. 648. »* Lib. VII, disp. LXXIX, n. 11. Impediment of Crime. 211 riage to be contracted after the death of the consort.^"^ Should its object be marriage after the civil divorce of the consort, the impediment would not arise.^"' It is immaterial whether this promise is antecedent, con- comitant, or subsequent to adultery, as long as both occur during the same marriage. . The impediment is not contracted if the adultery follows after the retrac- tion of the previously given promise, and the promise is not renewed after the moral offense. 5. Finally, detrimental to an existing marriage. This presupposes the knowledge of the ligamen bind- ing at least one of the parties. One might ask : Does an impediment arise between A. and B. when A. not know- ing that B. was married promises her marriage and subsequently, after having learned of her marriage, knows her carnally? Should A. renew his promise after he was apprised of the marriage of his accom- plice the impediment would unquestionably arise. In failure of such a renewal the impediment is doubtful. Some advocate that the renewal of such a promise is included implicitly in the commission of the crime of adultery, others again deny such a tacit inclusion. Owing to this controversy the impediment, at least on the ground of reflex principle, should not be urged. 306. Neither adultery nor the promise of marriage taken independently of each other would induce the impediment of crime. They must be correlated, or, in other words, both must take place during the same marriage. If A. unmarried, promised marriage to B. who is married, and during the same marriage they have known each other carnally, the impediment would arise. But if the promise of marriage was made dur- ing the life-time of B. 's first husband and the adultery =»= San-chbz, lib. VII, disp. LXXIX, n. 2 ; Schmalzgruber, h. t., n. 8 and 9; Feijb, op. cit., n. 649. »' Gaspaeri, op. eit, n. 648 ; Webnz, op. cit., n. 524. 212 The New Church Law on Matrimony. followed after she was remarried, the impediment would not be contracted unless the promise was re- newed, for both the promise and the adultery must be injurious to the matrimonial bond which bound B. by virtue of her second marriage. 307. On the ground of the principle "plus est du- cere quam fidem dare" the impediment arises should an actual attempt at marriage be substituted for the mere promise, for such action is construed as offering even a more direct and manifest injury to the innocent consort. In this connection it must be borne in mind that any marriage, though it be only civil, will give rise to this impediment, provided it is correlated with adul- tery such as described above.^"^ It is immaterial whether the adultery preceded or followed the attempt at marriage, as long as both took place during the ex- istence of one and the same matrimonial bond of which the offenders were aware. If after the attempt at mar- riage the parties repented and the adultery followed without a new attempt at, or without a promise of marriage ; or, if the attempt was made during the life- time of the first consort the impediment would not arise in either case.^"' 308. II. The second phase of this impediment arises when during the existence of one and the same legitimate matrimonial bond the two offenders commit adultery and either of them is guilty of the murder of his own consort.^"^ A. Adultery mentioned in this canon would not be- come a partial contributory cause of this impediment unless it were real, consummated and formal in the sense already indicated above.^'° ^•' S. C. de Prop. Fide, 14 ian., 1844. ™' Gasparbi, op. eit., n. 649 ; Db Smbt, op. cit., n. 324 ; WiaiNZ, op. cit., n. 526. '" Cod. Iub. Can., Can. 1075, ^2. "° See this work, n. 304. Impediment of Crime. 213 309. B. The murder of the consort : 1. Must be the outcome of the machination directed against the life of the innocent partner. It is imma- terial whether the murder results from physical vio- lence (by means of direct killing), or from moral vio- lence (by means of indirect killing, the outcome of a mandate or of an advice). 2. Must be committed by one of those guilty of adultery, and it must be one's own consort, namely, real husband or wife. Furthermore, death as occa- sioned by the plotting itself must follow either imme- diately, or mediately, in the latter case the wound in- flicted must have proved fatal. 3. Must have for its object the intention to contract marriage with the adulterous accomplice. Should it be actuated by a revenge, or by any other reason, the murder would fail to become a partial contributory cause to this impediment. It is sufficient that such a matrimonial motive should actuate only the party guilty of homicide. 310. There is a controversy to the effect whether it is necessary that this intention be manifested to the accomplice in adultery. Some take the affirmative "^ others again the negative side "^ of the. question. The affirmative side can hardly be sustained in view of the sources which speak of the plotting of one party only."^ Should the intention be manifested to the other party it would be equivalent to a conspiracy and we would be confronted with the third phase of this impediment when the death of the innocent consort re- sults from the mutual machination of the two accom- plices, in which case adultery is not a requisite. We "' Gasp ARM, op. cit., n. 650; D'Anntbale, vol. Ill, n. 441. ^" Wernz, op. cit., n. 531; note 61; Eosset, De Sacramento Matri- monii, ii. 2048 ff. ; Leitner, op. cit., tit. VII, n. 6, vol. IV, p. 215. "' C. 6, 7, X, de eo qui duxit in matrimonimm quam polluit per adul- terium, IV, 7. 214 The New Church Law on Matrimony. must therefore conclude that the second phase of this impediment does not require that the intention (to enter into marriage) of the party guilty of murder be revealed to the accomplice in adultery. It is to be noted that, generally speaking, this intention is pre- sumed, should all the conditions be verified. This pre- sumption is not praesumptio iuris et de iure; conse- quently, it admits a contrary proof."* The adultery and the murder of one's consort must be so correlated that the former follows before death overtakes the consort against whom the plot was aimed. It is imma- terial whether the adultery is committed before or after the machination, for example, before or after the administration of poison from which the death of the innocent consort resulted. 311. III. The third phase of this impediment arises from the murder of a consort, even when unaccompa- nied by the guilt of adultery, provided it was the out- come of mutual physical or moral acts of violence.^^° In order that the murder of a consort may of itself give rise to this impediment it is required : 1. That the consort whose death is procured be bound by a valid matrimonial bond to one of the ac- complices, and that this bond should exist at the time the homicide is perpetrated. Therefore in case of a putative marriage the impediment would not be con- tracted, for the murder would be qualified as a simple homicide and not a coniugicidium. The marriage need not be consummated, ratified marriage suffices."* It is immaterial whether the husband is guilty of uxori- cide or whether the wife murders her husband. 2. The co-operation of the accomplice must be of such a nature that he may justly be reputed as the "' S. C. C, Ulixbonen., 28 sept., 1726. "" Cod. Iur. Can., Can. 1075, n. 3. ="« Sanchez, lib. VII, disp. LXXVIII, n. 20; Wernz, op. cit., n. 527. Impediment of Crime. 215 co-criminal in the felonious act."' A mere approval given to the act after its commission would not involve the required criminality. It is immaterial whether the murder resulted from the physical or moral co- operation of the accomplice, as would be implied by physical acts of ATiolence in the former case, or a man- date or advice in the latter. If, therefore, A. reveals to B. his intention relative to the murder of his wife, in order to marry her, and the deed is perpetrated after her approbation is given, it is presumed that B. 's approval was an incentive to the commission of the crime.^^' 3. That the death should be directly intended and that it should not result from an accident but from acts of violence either immediately or mediately through the inflicted wound. If, however, the wound is not deadly, and the death can be traced to the inex- perience of the physician the impediment would not arise.^'° 4. Finally, that the murder be committed with the intention of entering into marriage with the accom- plice, or with one of those who participated in the criminal act. It is precisely this hope of such a mar- riage the Church wishes to obviate by the introduction of this impediment. There is a controversy whether the accomplices must be actuated by this intention, or whether they must have mutually manifested it to each other. S^ince the murder of the consort must be com- mitted with some hope of marrying the accomplice, it is reasonable to suppose that the principal should manifest his motive to his accomplice, whereupon the "' C. 1, X, de conversione infidelium, III, 33. "' Gaspabri, op. cit., n. 644 ; D'Annibale questions the tenableness of such an inference, vol. Ill, n. 440, note 25. "' ScHMALZGRttBER, h. t., n. 53; Sanchbs, lib. VII, disp. LXXVII, n. 9 ; Rbiffen-stul, IV, VII, 22, 25 ; Gasparri, op. cit., n. 644 ; D'Anni- bale, vol. Ill, n. 440, note 24. 216 The New Church Law on Matrimony. latter by lending his aid to the murder not only accepts it, but helps to make its realization possible. St. Al- phonsus maintains "° that familiarity or exchange of love-letters preceding the murder would constitute a sufficient intimation of the matrimonial intention. Other authors hold that in the external forum such in- tention is to be presumed in every case, especially if the accomplices, subsequently to the murder, should wish to contract marriage. Such a presumption could be praesumptio iuris tantum, to say the most, there- fore it would admit a contrary proof. Nevertheless, should such a doubt remain unsolved the marriage once contracted must be sustained.^'^ 312. The new law is silent as regards the multipli- cation of this impediment, therefore under the present discipline this impediment will not be subject to multi- plication. Since marriages contracted under the old law are to be judged according to the old discipline, it must be borne in mind that formerly the impediment could become multiplex either by virtue of crime or by virtue of marriage. Should the various phases of this impediment occur during one and the same marriage, namely, should the same guilt of adultery be followed successively by the promise of marriage, then by an attempt at marriage, and finally by the murder of one's consort, the impediment would be threefold. Should, in addition to the foregoing, the murder be the outcome of the plotting of both accomplices, the im- pediment would probably become fourfold.^'^ The im- pediment may become multiplex also by virtue of the injury offered to two marriages should both accom- plices be married. Should A. (married) commit adul- tery, accompanied by a promise of marriage, with B. ='» Op. cit., vol. VI, n. 1033. "' S. C. C, Bitunt., 15 ian., 2 iul., 1718. ^' De Smet, op. cit., n. 327. Impediment of Crime. 217 (also married) the impediment of crime would be twofold. Should they also attempt marriage, the im- pediment would become fourfold. If A. should murder his wife and also B.'s husband the impediment would become sixfold. 313. From the foregoing facts it is evident that the impediment of crime is established by the Church law and its purpose is to safeguard the sanctity and the integrity of Christian marriage and thereby the wel- fare of the commonwealth. Therefore infidels, not be- ing under the jurisdiction of the Church, do not con- tract this impediment unless the civil law of the coun- try to which they are subject corresponds to the Church law. Two infidels, after their conversion, may contract marriage even without a dispensation though, while in infidelity, they were guilty of a crime which would have given rise to this impediment had either of them been baptized. 314. Some maintain that if the adultery took place before the conversion and the promise of marriage after it, the impediment would arise. This opinion is justly rejected by modern canonists, for it would be equivalent to saying that the promise of marriage independently of adultery is sufficient to induce such an impediment.^'^ Should the crime be committed by a baptized and an unbaptized person, the impediment would arise owing to the fact that one of them is di- rectly subject to the jurisdiction of the Church, and rendered thereby incapable of contracting marriage, which inability is communicated to the other party.^" This statement is to be modified when one is confronted with the third phase of this impediment affecting di- rectly only the party guilty of adultery plus the «■ Sanchez, lib. VII, disp. LXXIX, n. 43 ; Gasparri, op. oit., n. 652 ; Db Smut, op. cit., n. 328, Corollary II; Wernz, op. cit., n. 521. '•' S. C. de Prop. Fide, 23 aug., 1852. 218 The New Church Law on Matrimony. murder of the consort, the party guilty only of adultery being affected only indirectly. If it is the baptized party that is guilty of the two crimes, the impediment would be contracted. Should the baptized party be guilty only of adultery, and the unbaptized party of adultery combined with the murder of the consort, the impediment would not be incurred. 315. It is necessary to say a few words on the much-mooted question : How does ignorance affect the impediment of crime ? It is well to bear in mind at the very outset that ignorance generally does not prevent one from contracting an impediment. But the impedi- ment of crime serves the purpose of a penalty for and of a preventive against the crimes which constitute the three phases of the impediment as explained above. It would therefore be natural to infer that ignorance of the penalty would excuse one from contracting the im- pediment. To this opinion adhered Gasparri,°'° D'Anni- bale,^^° Ballerini and Gury,^^' and Slater.^'' The other opinion holds that the vindictive punishment is only a secondary cause of the existence of this impediment, the primary cause being the common decency militat- ing against a marriage which can be traced to a grave moral offence (as adultery combined with the promise of marriage or with an attempt at marriage), or whose possibility was procured by the comniission of a crime (as in the case of the murder of a consort). This opinion which is defended by the majority of canonists was always held as the more probable.^'^ It might be -" Op. cit., n. 658. "' Summa Theolog, MorcHis, vol. Ill, n. 442. ^■' Theolog. Moralis, vol. II, n. 778. "'A manual of Moral Theology, vol. II, p. 317. ■^'KRiMEa, IV, VII, n. 1011 ff.; De Angelis, IV, VII, n. ult.; Wernz, op. cit., n. 522; Santi-Leitneb, loc. oit., n. 7 ff. ; De Smet, op. cit., n. 328 ; De Becker, op. cit., p. 165 ; Burtsell, in the Catholic Encyclo- pedia, art., Crime, impediment of; Feije, op. cit., n. 466; EBiprENSTOL, h. t., n. 26; add to these Zallingbk, Boeckhn, Wiestner, SchmaliZ- GRiJBEB and others. Impediment of Crime. 219 said in its favor that the decisions of the Sacred Peni- tentiaria and Dataria have never contradicted it, and that the old canons do not record a single example in which a person ignorant of the fact that such a penalty is annexed to these crimes was freed from incurring the impediment. 316. While the opinion holding that ignorance of the penalty does not excuse one from contracting the impediment had more weight the contrary opinion be- ing also well-founded was regarded as possessing an extrinsic probability. Consequently, if in the past there was a question of dissolving a marriage whose nullity was claimed by reason of the presence of the impediment of crime, the authors advised for the sake of safety to have recourse to the Holy See, should the penalty attached to such a crime have been unknown to the parties in question. In such instances on the ground of reflex principle Gasparri would not urge the impediment, but counsels either a dispensation ad cautelam or a sanatio in radice.'^" This would hold good only as regards marriages contracted before the new law went into effect. The subsequent marriages must be judged according to the new Code which espouses the opinion of the majority of canonists when it legislates that ignorance does not excuse one from a nullifying or a disqualifying law unless the contrary is expressly stated.^" The same is to be said with regard to the ignorance of an impediment.^'^ 317. As regards dispensation from this impediment the new law legislates specifically when it declares that a dispensation from a ratified non-consummated mar- riage, and the permission to contract marriage oh praesumptam coniugis mortem always include also a »» Op. cit., n. 658. '" Cod. Iur. Can., Can, 16, §1. »" Op. cit., Can. 988. 220 The New Church Law on Matrimony. dispensation from the first phase of this impediment, namely, when it arises from adultery combined with a promise of marriage or with an attempt at marriage.^"' It follows that from this phase of the impediment the Church dispenses without much difficulty. 318. A very grave reason is required for the dis- pensation when the impediment is contracted on ac- count of the other two causes, namely, adultery com- bined with the murder of the consort, or murder of the consort as the outcome of the plotting of both accom- plices. In these two cases, owing to the enormity of the crime, Wernz maintains that the Church never dis- pensed nor is it inclined to do so when the murder is public.^"* Should it be occult the Sacred Penitentiaria, though very rarely, in some instances does dispense, for the forum of conscience, namely, when the guilt of the parties in question is not likely to be divulged, and the cause is most urgent. If the death of the consort resulted from the administration of poison, an addi- tional difficulty is placed in the way of obtaining a dis- pensation.-^" If the marriage is already contracted and the separation is not possible without occasioning grave scandal, and danger of incontinence threatens; or when the parties are so determined to marry that a public concubinage or an attempt at marriage is feared, then the dispensation is granted provided the murder is secret. 319. In case of urgent danger of death none of the four species of this impediment is reserved. Under circumstances already explained ^'"^ Bishop and priests could dispense from it notwithstanding the fact that the murder of the consort was a public act.^^^ Similar -" Op. cit., Can. 1053. =" Op. cit., n. 534. "'' Gasparbi, op. cit., n. 654. *- See this work, n. 151 flf. ^•'COD. IDR. Can., Can. 1043. Impediment of Crime. 221 is the power of the Bishop over this impediment, whether the murder is public or secret, whenever the conditions formerly styled as casus perplexus are verified.^"' The priest in this case could dispense only if the murder is an occult act and recourse to the Bishop is difficult. It is to be noted that the new law classes the first phase of this impediment (namely, when it arises from adultery combined with a promise of marriage, or with an attempt at marriage) under impediments of minor grade.^"' Consequently an error either in the petition or in the rescript, and even obreptio or subreptio would not impair the validity of the dispensation.^"" 320. The new law does not impose specific penalties on those who contract the impediment of crime. The punishments must be gathered from the various penal- ties meted out on account of separate offences implied in the impediment. These offences are : Adultery, bigamy, attempt at marriage and homicide. Persons guilty of public adultery are barred from all ecclesi- astical acts until they give unmistakable signs of re- pentance and amendment.^"^ Bigamists, namely, per- sons who while bound by a matrimonial bond attempt another marriage, even if it be only civil, are ipso facto infamous. Should they persevere in an illicit famili- arity, spurning the admonition of the Bishop, they are to be excommunicated or placed under personal in- terdict, according to the gravity of their offence.^"^ The new law brands homicides as irregulares ex de- licto. ^''^ Their crime brings with it exclusion from all legitimate ecclesiastical acts, from every office they ^'Op. cit., Can. 1045. ^^ Op. cit., Can. 1042, $2, n. 5. ="> Op. cit., Can. 1054. "■ Op. cit., Can. 2357, §2. '"Op. cit., Can. 2356. '»' Op. cit.. Can. 985, n. 4. 222 The New Church Laiu on Matrimony. may hold in the Church, and the burden to repair all damages.^"* IX. Impediment of Consanguinity. (Canon 1076.) 1. Preliminary Notions about Consanguinity. 321. Consanguinity or blood-relationship is a nat- ural bond, a blood union, existing between persons who within degrees specified by Civil or Ecclesiastical Law descend from a common ancestor, or one directly from the other. The degree {gradus) represents the distance be- tween persons related in the same line. The descent from the common ancestor, who is the root or source {stipes) of consanguinity, may be traced either in direct line {linea recta) or in collateral or transverse line {linea obliqua, seu transversa, seu collateralis) . Line in this connection represents a series of persons united with one another by a bond of consanguinity. According as the descent is direct or indirect we dis- tinguish lineal and collateral consanguinity. Lineal consanguinity exists between persons of whom one descends directly from the other, for example, father and son ; grandfather and grandchild. The direct line is descending {descendentalis) , if the computation be- gins from the highest and goes down to the lowest de- gree of relationship. In the ascending {ascendentalis) direct line relationship is traced from the lowest to the highest degree. Collateral consanguinity springs from the same ancestor, not by direct but by indirect descent. In this case the common ancestor is the trunk {stipes) from which the different blood relations branch out, not one from the other, but side by side, »«0p. cit, Can. 2354; see this work, u. 270. Impediment of Consanguinity. 223 for example, brother and sister; two cousins, two nephews. The collateral line is equal (aequalis) when the persons in question are equally distant from the common stock, for example, first cousins. It is un- equal {inaequalis) when the distance is not the same, namely, when one is farther from, or nearer to, the common ancestor, than the other, for instance, uncle and niece. 322. Consanguinity may be : 1. Legitimate and ille- gitimate. The former presupposes the legitimacy, the latter the illegitimacy of the union from which the child was born. In either case the impediment of con- sanguinity has the same force. 2. Perfect and imperfect. Those persons are related by perfect consanguinity whose father and mother are the same. They are called brothers-german, or "whole" brothers or sisters. If they come from the same father but from different mothers, or from the same mother but from different fathers, then we have an example of imperfect consanguinity. In the former instance they are called half-brothers, or half-sisters, in the latter uterine brothers. 3. The blood relatives on the father's side are some- times caled agnates, those on the mother's side cog- nates. This designation must not be confused with the idea of agnation and cognation as interpreted by the Roman Law. 4. Simple and multiplex. In the former the related persons trace their descent to the common ancestor by one line only ; in the latter by two or more lines. The impediment of consanguinity is multiplied as often as the common ancestor is multiplied.^''^ Thus the rela- tionship is multiplex as often as the ascending lines of the parties in question meet ■\\T.thin degrees specified by the law. These lines must continue until, having ""' Cod. Itie. Can., Can. 1076, ?2. 224 The New Church Law on Matrimony. passed beyond the persons constituting the intermedi- ate root, they converge in one and the same ancestor, common to both. 2. History and Nature of the Impediment. 323. A few reflections on the most important his- torical aspects of this impediment will suffice for our purpose. The Mosaic Law, for reasons inherent in the history, calling and character of the Israelites, pre- scribed only a few degrees within which marriage among blood-relatives was prohibited.^"" The prohibi- tion of the Roman Law was extended to more remote degrees. It included all the blood-relatives legitimate and illegitimate, of the direct line ascending or de- scending.^"' It is also certain that in the collateral line it never permitted marriage between brother and sis- ter. The extent and force of the prohibition regarding other degrees of the same line are a matter of contro- versy among the various authors. The law of Theo- dosius (384) extended this prohibition to first cousins inclusively,^"* but for the Eastern Church the prohibi- tion was subsequently revoked by the edict of Arca- dius (400).'°' Justinian approved the Arcadian enact- ment and promulgated it in the East and the West, ex- tending the prohibition to first cousins and reserving for the emperor the right to dispense.'^" At this period the Germanic Law, following in the footsteps of the Roman Law, introduced its prohibition to the seventh degree of consanguinity. Up to the sixth century the Church permitted itself '"Lev. XVIII, 6 ff.; XX, 11 ff.; Veut. XXXVII, 20, 22, 23. ""ESMEIN, op. cit., pp. 336 ff.; L. 17, C. de nupt. v. 4; L. 53, 54, 37, 17, §2; T). de ritu nupt. XXIII, 2. "" St. Augustine, De Civitate Dei, XV, XVI ; St. Ambrose, Up. LX, ofi. Paternum : Ambrosii Op. Omnia, torn IV, p. 369, Parisiis, 1836; Wernz, op. cit., n. 409. ""ESMEIN, ov cit., p. 339; L. 19, C. de nupt., V, 4. "" L. 1, C. Th., de incest, nupt., Ill, 10. Impediment of Consanguinity. 225 to be guided by the civil legislation. In the middle of that century it expressly prohibited marriage between second cousins/" The Oriental Church half a century after the Second TruUan Synod "^ (692) submitted to the same regulation. The lack of absolute uniformity in insisting on the universal observance of the law, in computing the different degrees of consanguinity, and in determining with certainty the last prohibiting de- gree, created not a little confusion, which lasted to the eighth century. Desirous to establish uniformity of discipline, the Church adopted the Germanic method of computation and, in accordance with the Germanic and Roman laws, the impediment was extended to the seventh degree. It is a controverted question whether at that time the impediment was regarded as diriment in all Christian localities. The majority of authors agree that it was considered as such in Italy and Rome, but that in some countries the last three degrees were regarded only as impedient and not as diriment impediments.*^^ It was only after prolonged contro- versy and repeated ecclesiastical legislation that a more positive step toward unifying the discipline of the Church was undertaken. The Second Lateran Council (1139) canonized the then prevailing disci- pline,"* extending it to the universal Church, and pre- sumably prohibiting marriages to the seventh degree of consanguinity inclusively. Even subsequently some doubts were entertained as to the binding force of the last two degrees. Finally the Fourth Lateran Council (1215) '" restricted the prohibition to the fourth de- gree of the collateral line owing to the grave inconveni- "■ C. 30, Con. Epaun; C. 8, C. XXXV, q. 2 and 3. "'Cone. Trul., c. LIV; ib. Wernz, op. cit., ii. 409. •" Wernz, op. cit., loo. cit. "* Cone. Lot. II, c. XVII, see Mansi, Amplissima Col. Con., vol. 21, col. 530. ='"Petr. Lombabdi, in Sent., lib. IV, dist. XXXIX and XL. 226 The New Church Laiv on Matrimony. ence arising from its observance in the more remote degrees.'" 324. Several Fathers of the Council of Trent pro- posed a reform favoring the restriction of the impedi- ment to the third degree.''^^ Their suggestion after the third reading was overruled and the former discipline retained."* This tendency, shown by several of the convened Fathers, may have influenced Paul III (1534-1549) in restricting the impediment to the second degree for American Indians,"' and also for the na- tives of the Philippines.**^" What the consensus of several Fathers convened at the Council of Trent considered expedient has been in- troduced by the promulgation of the most recent matri- monial discipline. The impediment of consanguinity in its present form is restricted to the third degree of the collateral line.'" In the direct line, both descend- ing and ascending, it prohibits and invalidates all marriages between persons related by consanguinity whether natural or legitimate.'-' The computation will begin with great-grandfather and great-grand- mother, and the last in the direct line is the great- grandson and great-granddaughter. The last degree in the collateral line is second cousins, grand-nephew and grand-niece on either the father's or the mother's side. Marriage may never be permitted if there is a doubt SIS "Prohibitio quoque copulae eoniugalis quartum eonsanguinitatis et affinitatis gradum de eetero non exeedat; quoniam in ulterioribus gradi- bus non iam potest absque gravi dispendio huiusmodi prohibitio general- iter observari." Mansi, op. cit., vol. XXII, col., 1038. "' Theineb, Acta, II, 342. '" Be Beform. Matr., sessio XXIV, can. III. "° ZiTKLLi, Apparat. lur. ecc, p. 439 ; Eomae, 1888 ; Mansi, op. cit., vol. 36, bis; Cone. Prov. Limcmum I, col. 251. "»Litt. Ap. Leonis PP. XIII, 18 apr., 1897; new Collect., n. 1965; Wernz, op. cit., n. 409; BURTSELL, in the Cath. Encyclopedia, art., "Consanguinity." »^' Cod. Iur. Can., Can. 1076, $2. "" Op. cit., Can. 1076, $1. Impediment of Consanguinity. 227 whether the persons to be married are related in any degree of the direct line or in the first degree of the col- lateral line.'^^ Though it is a controverted question whether marriage between brother and sister is against the law of nature, the Church has never granted a dis- pensation in such cases/-* By prohibiting the mar- riage absolutely even in case of a prudent doubt whether the persons in question are related in that de- gree, the Church seems to favor the opinion of those who extend the prohibition of the natural law outside the direct line. 325. In the Uniat Greek Churches the discipline is not uniform. Their method of computation is that used by the Civil Law. The prohibition of some ex- tends to the seventh,'-' of others to the eighth civil de- gree. According to the canonical computation the former would be second cousins touching third (third degree touching fourth), and the latter the fourth degree of the equal collateral line. Among the Syri- ans,"^" Copts,'" Italo-Greeks and the Maronites the former legislation of the Catholic Church obtains, namely, the last prohibiting degree is the fourth, ac- cording to the canonical, or the eighth, according to the Oriental computation. 326. Since the new legislation contained in the Codex of Pius X does not affect the Oriental Churches, their discipline, until reformed, will remain unchanged. The Constitutions of Benedict XIV, namely "Etsi pastoralis" ^"^ and "Singularis" ^^^ (this latter ap- '" Op. cit., Can. 1076, §3. '^'Benedict XIV, "Aestas Anni," oct. 11, 1757; see Bull. Bom. Cont., vol. IV, p. 473, n. XIII. '^"Wernz, op. cit., n. 409, note 51. ^-'' Synodus Sciarfensis Syrorum, c. \, art. XIV, §7, j). 179. Eomae, 1896. '^' Synodus Alexandrmus Coptorum, c. VIII, de Sacr. Matr., p. 168. Romae, 1899. "»BBira3)iCT XIV, Bull Bom. Cont., vol. I, p. 197. '^ Loo. cit., p. 100. 228 The New Church Laiv on Matrimony. proves the letter of Innocent IV relating to the pro- vincial Synod of the Maronites held in 1736) intended expressly for the Uniat Churches, enforce the same discipline as that in vogue in the Eoman Catholic Church. Papp-Szilagyi ^^° remark that owing to the prudent economy of the Holy See, the above-mentioned epistle of Innocent IV has never been enforced. They also state that the Constitution "Etsi pastoralis" was intended exclusively for the Italo-Greeks and not for all the Uniat Churches. From these two statements they draw the inference that marriages contracted within the eighth degree of consanguinity (fourth canonical degree, namely, third cousins) are not to be considered invalid, unless the marriage takes place in a province for which the Holy See has expressly legis- lated to that effect. In the Churches of the East all marriages between persons related in the direct line are forbidden, and in the collateral line to the seventh civil degree. The remotest degree is only an impedient impediment. ''^^ The national Greek Church prohibits marriage within the sixth degree, which corresponds to the present ecclesiastical discipline. 3. Mode of Computation. 327. Roman Law is in agreement with Civil Law in the method of computing the degrees of consanguinity arising from the direct line, but the two differ in reck- oning the degrees of the collateral line. The following rules will prove a guide in the canonical method of computation : (A). In the direct line there are as many degrees as there are generations, or as there are persons minus the common ancestor.'^^ Thus, for example, a grand- "" Enchiridion luris Ecclesiae Orientalis Catholicae, P. 2, §109, Magno Varadini, 1862; ib. Feije, op. cit., n. 365. ■"" BuRTSELL, loc. cit., art., "Consanguinity" (mode of calculation). ™C0D. luB. Can., Can. 96, $1. Impediment of Consanguinity. 229 child is removed by two degrees from Ms grandfather. (B). In the equal collateral line there are as many degrees as there are generations on one side of the line. Thus, for example, first cousins are related in the second degree of equal collateral line. (C). In the unequal collateral line there are as many degrees as there are generations ^^^ on the longer side of the line. But for the sake of completeness and ac- curacy the number of generations in the shorter line must also be indicated. Thus, for instance, uncle and niece are related in the second degree touching the first. According to the English mode of calculation all persons are counted, in both the lineal and the col- lateral blood-relationship, the common stock being omitted. Thus, for instance, the grandfather and the granddaughter are related in the third degree of lineal consanguinity. Uncle and niece are related in the third degree, first cousins in the fourth degree, second cousins in the sixth degree of collateral blood-relation- ship. 328. Consanguinity may be duplicated. The multi- plication of blood-relationship is due to any of the fol- lowing causes : (A). The persons in question descend from ances- tors who, being related to each other, married persons likewise related, for instance, two brothers marry two sisters and the child of one brother and sister wishes to marry the child of the other brother and sister. (B). The persons in question descend from a com- mon ancestor whose two children contracted marriage successively with one and the same person ; thus, for example, they descend from the same grandfather whose two daughters married one and the same person, or whose two sons married one and the same person. ■" Op. cit., Can. 96, 52. 230 The Neiu Church Law on Matrimony. To elucidate these hypotheses it will be well to illus- trate them by diagrams to which the authors generally resort. I. Diagram. (Hypothesis A.) Joseph James Theodore (brothers) Sylvester Marffaret (sisters) Helen Raymond (wishes to marry) Agatha (Son of Sylvester and Margaret) (Daughter of Theodore and Helen) In this diagram Raymond and Agatha are twice re- lated in the second degree of the equal collateral line. The former is traced to both Joseph and James through Sylvester and Margaret. Agatha is traced to the same ancestors through Helen and Theodore. II. Diagram. (Hypothesis B.) Joseph Bernard Anna (sisters) Agnes Angela (Daughter of Bernard and Agnes) (Son of Bernard and Jul Anna) Charles (wishes to marry) Clara In this diagram Clara can be traced to the common ancestor (Joseph) through Angela and Agnes; Charles Impediment of Consanguinity. 231 through Julius and Anna. Having Joseph for their common great-grandfather, they are related in the third degree of the equal collateral line. Having Bernard for common grandfather, they are related in the second degree of the same line. To arrive at the degree of consanguinity in which the prospective consorts are related one may begin either with the common ancestor and descend to the persons in question, or with the prospective consorts and ascend to the common ancestor. III. Diagram. Joseph Julius Francis Charles Thomas Bernard (wishes to marry) Agues From this diagram it is obvious that the prospective consorts are related in the third degree of the equal collateral line. 232 The New Church Law on Matrimony. Genealogical Tree. Thair imndchlldrrn B> Tbilr chlMrtn FilrD>ln xt: Fr.lti. Orol-nncto Gruoonl I Pttnm niM"» Amita nun. ^^ Aunt FitroDi Bn>ih>r H>tl b™u.r F,.i,r On»-fr*aU>llHr nr»i(THdinnl»i PTI«Tt« 1 1 1 1 Ftthor MolW P.l.r Haor 1 1 Snn 1 1 Grinddiuchur 1 OmicranMiiiftaiir Front pUi S-ph.- 1 Rerorr. Fin. Swonil costlil Impediment of Consanguinity. 233 4. Motives of This Impediment. 329. There are three leading reasons which actu- ated the Church in approving and enforcing the im- pediment as it is accepted by the Mosaic and the Roman Law, namely : 1. To safeguard the observance of . the prohibition arising from natural law ; 2. To establish a barrier against early corruption which threatens young persons related and living under the same roof; 3. To promote a more extensive bond of union among men by means of intermarriages and to prevent the inbreeding of blood-relatives (a practice which very frequently occasions procreation of defec- tive offspring, and transmission, in an intensified de- gree, of any physical, mental, or moral weaknesses under which the parents may be laboring). For a more comprehensive development of the aforesaid reasons the reader shoidd consult the authors suggested below. A few remarks by way of explanation will sufficiently serve our present purpose. I. The cause of consanguinity is identity of blood.'" This identity becomes more pronounced the nearer a person approaches the common ancestor. It is gen- erally admitted that marriage in the first degree of the direct line, between parent and child, is prohibited by natural law,''^ for the reason that the blood of parents and children is practically identical. To avert the dele- terious effects of consanguineous marriages, the inter- mingling of foreign blood is necessary, which can be acquired only outside the family, for, as St. Thomas expresses it, blood-relatives are of the same sub- stance.*'° "' St. Thomas, Suppl. Illae, p., q. LIV, a. 3, c. ■" SuAREZ, De leg., lib. II, cap. XII, n. 3 ; Perrone, op. cit., vol. II, p. 137; St. Ambrose, ep. XL, ad Patemum; St. Thomas, in Sent., lib. IV, dist. XL, a. Ill, ad arg.; Sanchez, De Matrimonio, lib. VII, disp. LI; Weenz, op. cit., u. 410; Gasparri, op. cit., n. 675; De Smet, op. cit., n. 200 ; De Becker, op. cit., p. 181. «■• Suppl. Illae, p., q. LIV, a. IV, ad. 7. 234 The New Church Law on Matrimony. 330. Marriage between parent and child does not absolutely exclude the possibility of the realization of the primary end of nature. But this is attained very imperfectly, while the secondary end is not likely to be attained at all. Besides, such unions advocate the most unnatural condition, by reversing the essential naturaL position existing between parent and child.^" By natural law the child owes to his parents deep rev- erence, obedience and subjection. Marriage makes them equal, or makes the mother even inferior to her son in case the two should be united in ■ matrimony. Though, generally speaking, it is repugnant to a ra- tional being to contemplate such unions, history is not without precedents showing that the Church had re- peated occasions to insist on the observance of natural law in this respect. She had to deal with nations like the Persians who were addicted to practices contrary to the law of nature,^^* and who justly merited the vituperation of St. Chrysostom and St. Augustine, and even of the Pagan Aristotle and Pliny. The Church, wishing to bring such Gentiles under her spir- itual domain, encountered the task of disabusing them of their unnatural notions, by gently inoculating them with Christian ideas, or, whenever such remedy proved insuiRcient, by enforcing stringently some of her legis- lative measures.^'' It is a disputed question whether natural law for- bids all marriages beyond the first degree of con- sanguinity in the direct line. The affirmative opinion is generaly advanced as the leading one.'*" In support of this view the authors draAAJ^ attention in particular '" St. Thomas, loc. cit., q. LIV, a. Ill, c. =■' De Becker, op. cit., p. 179. "' Perrone, op. cit., vol. II, p. 138. "" SCHMAiZGRUBER, p. Ill, tit. XIV, n. 30 ff. ; Wbrnz, op. cit., n. 410 ; Gaspaeri, op. cit., n. 674 ; De Beckeh, op. cit., p. 181 ; De Smet, op. cit., n. 299. Impediment of Consanguinity. 235 to the answer of Pope Nicolas I (858-867) occasioned by an inquiry on the part of the Bulgarians, there be- ing no more authoritative declaration available rela- tive to the matter in question/" Though the Church fails to state expressly that her prohibition of marriages between persons related in any degree of lineal consanguinity is equivalent to a mere enforcement of natural law, we are inclined to believe that such is the case. It is true that this opin- ion may be controverted, but in practice no difficulty can be experienced, because the Church has legislated by positive law. The discipline of the Church, dissolv- ing all marriages of lineal consanguinity and those contracted in the first degree of collateral consan- guinity,'*- is certainly in favor of our opinion. Not a single instance can be adduced in which after the con- version of one or of both parties the Church has ratified such marriages. Nor has it ever dispensed in these degrees of consanguinity, not even in the case of the most urgent necessity. 331. While the primary laws of nature do not seem to prohibit marriage in the first degree of collateral blood-relationship (between brother and sister), the deordination of such a union strikingly militates against the secondary laws of nature. This departure from the natural order of things is sufficiently grave to permit the inference that though natural law may not put the same extreme ban on such marriages as it does on those of lineal consanguinity, it tolerates them '■" "Nam quarundam nuptiis abstinere debemus, inter eas nempe per- sonas quae parentum liberorumve locum inter se obtinent, nuptiae eon- trahi non possunt, veluti inter patrem et filiam, vel avum et neptem, matrem et filium, aviam et nepotem, et usque ad infinitum." (Opuse., Eesponsa Nicolai I, ad consulta Bulgarorum, cap. XXXIX, p. 23, Eomae, 1860; ib., Mansella, op. cit., p. I, c. Ill, a. I, n. 6, note; G-asparri, op. cit., n. 674, Feije, op. cit., n. 364; Schmalzgruber, op. cit., p. Ill, tit. XIV, n. 35; De Becker, op. cit., p. 182; De Smet, op. cit., n. 298. "' Synodus Limana X, 15 aug., 1582, Mansi, op. cit. vol. 36 bis, col. 199; Wernz, op. cit., n. 410 note, 58; De Becker, op cit., p. 181. 236 The New Church Law on Matrimony. only on the supposition that they are absolutely neces- sary for the propagation of the human race, as a con- ditio sine qua non.^*" Advocates of this opinion main- tain that natural law yielded to such necessity in the case of the sons and daughters of our first parents.^" On the ground of the immutability of natural law other authors maintain that marriages in the first de- gree of collateral consanguinity are forbidden by di- vine positive law which became obligatory on and operative with the grandchildren of Adam and their descendants. One should not presume, they argue, without an unavoidable necessity, that God dispensed from and suspended a law which, inhering in nature and man, and having a universal binding force, is im- mutable.^*" Other arguments as regards this question will be found in the following section which treats of the dispensation from this impediment. The teaching of theologians, based on the practice of the Church, gives the latter the right to dissolve mar- riages contracted in infidelity within the prohibitory canonical degrees, provided both parties become con- verts, and there is a just cause. This dissolution can- not take place, if the persons in question have consum- mated the marriage subsequently to their conversion."" This point will be explained more fully later. Though marriages contracted in the other degrees of collateral consanguinity do not interfere seriously with either the primary or the secondary laws of na- ture, they are not thereby altogether reconcilable with natural law by virtue of which they are considered illicit. The Church has not only approved this mild '" Weenz, op. cit., n. 411 ; De Smet, op. cit., n. 299, note 2. '" Gasparbi, op. cit., n. 678. '" Santi-Leitneb, Praelectiones lur. Can., vol. IV, tit. XIV, n. 13, Eatisbonae, 1905. ""Feije, op. cit., n. 367; Pebeone, op. cit., vol. II, p. 313; Wernz, op. cit., n. 699; D'Annibale, op. hit., vol. Ill, n. 470. Impediment of Consanguinity. 237 prohibition of the natural law, but enhanced its force. Thus an impediment which, by virtue of natural law, is only impedient in some degrees of collateral con- sanguinity, becomes diriment by special ecclesiastical legislation. That the Church was justified in annexing the penalty of nullity to an act which by natural law is only illicit will be evidenced from the discussion of the following two points. 332. II. The bond uniting blood-relatives is a dif- ferent bond from the one which arises among persons related by marriage. In the first instance it springs from natural relation, it is an inherited tie. In the sec- ond it is acquired. Consequently the sentiments of love and confidence arising from the first relation differ substantially from those to which the acquired bond gives rise. The sanctity of home and the pure love which ought to exist among consanguineous persons would be ex- posed to grave danger if such marriages were not dis- countenanced by the Church and also by public opinion. The natural bond by which such persons are united, instead of being instrumental in procuring an unlim- ited amount of good, would become the means of per- verted intimacies, which would result in creating a poi- sonous atmosphere at the very base of society. It must be admitted that the occasion for evil is nearer among blood-relatives on account of their free com- panionship and intercommunion.'" To counteract the influence of this threatening evil, as a matter of advis- ability the Church surrounds with safeguards and ad- ditional precautionary measures those who are exposed to it. "' "Finis matrimonii . . . deperiret, si quaelibet consanguinea posset in matrimonium duci, quia magnus coneupisoentiae aditus prae- boretur nisi inter illas personas quas oportet in eodem domo conversari cssct carnalis oopula interdicta." St. Thomas, Suppl. Illae, p., q. LIV, a. Ill, c; and in Ilallae, q. CLIV, a. IX, c. 238 The New Church Law on Matrimony. 333. III. Marriage, the only legitimate means for the propagation of the human race, is the office of the community. The reasons thus far advanced may be regarded as requisites for the moral welfare of society. But the institution of marriage is to promote not only the moral but also the social and physical well-being of the community. The most effective means calcu- lated to promote the social welfare of a community is the tangible bond, be it ever so remote, linking the different persons and originating in matrimony. The most ideal society is one in which all the persons are related, for then its units will endeavor to promote, and take a personal interest in one another's happi- ness and prosperity. To cultivate this feeling of friendship and brotherhood is one of the ends of matri- mony,^*' thus to aid men to the realization of the Fatherhood of God."^ By the prohibition of consan- guineous marriages, this connecting link is extended to persons heretofore unrelated, and thus the fact that mankind is one huge family is visualized more tangibly. Furthermore, both the Church and the State are au- thorized by God to guard the physical welfare of humanity. They exercise this authorization when they lay down certain laws tending to promote that end. The community implicitly admits such authority when it conforms to such rules regulating its actions. The legislation thus enforced may be either remedial (in- tending to remove an existing evil) or prescriptive (upholding for prudential reasons a hereditary law "' "Habita est enim ratio rectisaima earitatis, ut homines . . . di- versarum necessitudinum vinculo nectereutur . . . atque ita se non in paucitate eoarctatum, sed latius atque numerosius propinquitatibus crebris vinculum sociale diffunderet . . . ne habeat duas necessi- tudines una persona, cum duae possint eas habere, et numerua propinqui- tatis augeri." (St. Augustine, De Civitate Dei, lib. XV, cap. XVI, Lipsiae, 1867 ; St. Thomas, Ila-IIae, q. CLXIV, a. IX, c. ; again, Suppl. Illae, p., q. LIV, a. Ill, c; I Peter II, 17. '"Acts, VII, 26. Impediment of Consanguinity. 239 transmitted by foregoing generations). The prohibi- tion expressed by such laws is founded on experience and observation. They provide against acts which in the past proved detrimental to the physical welfare of society. The impediment of consanguinity belongs to the category of hereditary prescriptive laws. It is an established fact of experience that consanguineous marriages are injurious to the physical welfare of the child. The modern physiologists accept this fact estab- lished on, and corroborated by, statistical information, but they fail to agree as to the gravity of the harm in- flicted on offspring of incestuous unions. 334. The nature and scope of this work will not permit us to enter into the discussion of the different theories suggested in explanation of exogamy and endogamy as practiced by some savage races. The reader is referred to the authors quoted below.^^" Westermarek mentions several writers who positively exclude the possibility that the harmful consequences resulting from endogamic marriages, as ascertained by facts of observation, could have been instrumental in influencing the untutored tribes to form laws prescrib- ing exogamic unions.'" Granting that no positive traces can be found favoring a contrary assumption, we cannot legitimately conclude that the available facts, namely, the obvious mental and physical defi- ciencies of offspring born of incestuous marriages, en- tirely escaped their attention. Unless there is positive ""Spenckb, Principles of Sociology, I, 614 &.; London, 1885; Fkazer, Totemism, Edinburgh, 1887; Maine, Dissertatioiis on Early Law and Customs, Liondon, 1883 ; McLennan, Studies in Ancient History, London, 1886; Exogamy and Endogamy, in the Fortnightly Beview, vol. XXI, London, 1887 ; Melody, Marriage and Near Kin, in the Catholic Uni- versity Bulletin, .Jan., 1903, pp. 40-60, Washington, D. C. ; Cronin, op. cit., vol. II, pp. 45 ff. "" Westebmabck, Geschichte der menschlichen Ehe, eh. XIV and XV, pp. 289-356, Yena, 1893. 240 The New Church Law on Matrimony. evidence to the contrary one is not justified in placing gratuitous limitations on the knowledge of peoples who displayed so remarkable an ingenuity in exploring the secrets of nature, and so striking a familiarity with its serviceableness and adaptability to their daily wants.^" While we do not contend that the uncivilized tribes were in possession of a "sagacious calculation" of these harmful effects/" we maintain that they were not altogether ignorant of them, and that their knowl- edge, combined with their natural repugnance to such unions, gave birth to the prohibitory laws against endogamic marriages. 335. We already had occasion to hint at the fact that there is a lack of unanimous belief as to the grav- ity of the physiological evils resulting from incestuous marriages. That these evils have frequently been ex- aggerated we readily agree with Arner.^^* Though, to all appearances, he is inclined to minimize these harm- ful consequences, he admits with frankness that ' ' suc- cessive generations of offspring of incestuous connec- tion . . . are very often degenerate. ' ' ^°^ The intensification by double inheritance of the hereditary family characteristics is certainly an un- doubted physiological fact. In the case of mental or physical weakness on the part of the parents, degen- eracy is a serious menace to be feared, though it may fail to assert itself in every case individually, or even in the first generation. Statisticians interested in such investigations have almost unanimously come to the conclusion that such hereditary defects on the part of the parents are transmitted in an intensified degree to ""Maine, op. cit., p. 228. "" Cronin, op. cit. vol. II, p. 453. "" Consanguineous Marriages im the American Population. A Doctor- ate Dissertation, Columbia University, 1908 ; Thompson, Heredity, pp. 386 S., London, 1912. '" Aenee, op. cit., p. 88. Impediment of Consanguinity. 241 the offspring.^'" This intensification is greatly in- creased in case the parents are living in an incestuous union. Such unions, if not childless, as is often the case, beget offspring subject to grave physical and mental weakness, for instance, epilepsy, deaf-mute- ness, and nervous diseases. The child of such a union acquires and transmits easily the defects of its par- ents, especially when the inbreeding of blood-relations is repeated."" The statistics of Fay bear out this fact. He ascertained that deafness, whether congenital or adventitious, is more likely to be transmitted in a con- sanguineous union than in a non-consanguineous union "^' and undoubtedly with increased intensity. Viewing the foregoing facts cumulatively, no one should deny that the Church has sufficient ground for the stand she takes in these matters. Since under present conditions the blood-relationship beyond the third degree of consanguinity does not seem prejudi- cial to offspring, the Church has lifted her ban from the fourth degree. 5. Dispensation from the Impediment. 336. Those degrees of consanguinity which are based on natural law bind both baptized persons and infidels. Therefore marriages attempted between per- sons related within such degrees are ipso facto null and void and such consorts must separate in case one or both embrace the Catholic faith. The authors fail to agree as to the degrees prohibitory by natural law. sue HxiTH, The Marriage of Near-Kin considered with respect to law of nations, the results of experience, and the teachings of biology, London, 1875; SuBBLBTD, La morale dams ses rapports aveo la medicine, et Vhygiene, Paris, 1896; LuKOCK, The history of marriage, Jewish and Christian, in relation to divorce and certain forbidden degrees, London, 1895; Peterson, in the Encyclopaedia Brittaniea (Eleventh edition), vol. XIV, art., "Insanity," n. 6 (Consanguinity). '"'BuRTSELL, loc. cit., "Consanguinity" (Motives of Impediment). ■"Fay, Marriages of the Deaf in America, pp. 132-133; Washington, 1898, Gibson Brothers. 242 The New Church Law on Matrimony. There are three opinions. Some include all the de- grees of the direct line and the first degree of the col- lateral line.^^" Others maintain that the prohibition of natural law does not extend beyond the first degree of lineal and collateral blood-relationship.'°° A third class of authors confines the prohibition of natural law to the first degree of lineal consanguinity."" The solution of this doubt is of paramount im- portance when a marriage contracted in infidelity is to be ratified after the conversion of the parties. We presume here that the civil law to which the persons in question are subject does permit marriages within the above-enumerated controverted degrees. If it should prohibit such unions, then the civil impediment has already suspended the validity of their marriage and it cannot be revalidated, if they should be related within any of these controverted degrees, from which the Church never dispenses. 337. The advocates of the first opinion, the most comprehensive, draw the conclusion that persons who before their conversion contracted marriage in lineal consanguinity or in the first degree of collateral blood- relationship, cannot be permited to remain in a union invalidated on the ground of natural law. Such con- sorts, on their conversion, should be separated and permitted to remarry. In all the other degrees, pro- vided the civil law does not interfere, the marriages ■" Weknz, op. cit., n. 410 and n. 417 ; Feije, op. eit., n. 366 and 367 ; Lehmkuhl, Theologia Moralis, vol. II, n. 990; Friburgi Brisgoviae, 1910; Hbiss, De Matrimonio, pp. 139-142, Monachii, 1861; Santi-Leit- NER, op. oit., h. t., ii. 13, p. 250; Schmalzgruber, op. cit., p. Ill, tit. XIV, n. 35. The latter admits that marriage between the descendants and ascendants is invalid in infinitum oji the ground of natural law, but, in his opinion, marriage in the first degree of collateral blood- relationship is not forbidden on the same ground. (Op. cit., loc. cit., n. 46.) '"" Sanchez, op. cit., lib. VII, dis. LI, n. 11 and disp. LII, n. 21. "" Gasparbi, op. cit., n. 680; Vesmcelli, Be Apostolicis Missionibus, q. XCVIII, dub. 14; Giovine, De Disp. Matr., I, J209, n. 1. Impediment of Consanguinity. 243 of infidels are valid, for they are not bound by canon- ical impediments which, in the estimation of these authors, begin with the second degree of collateral consanguinity. The advocates of the second opinion, less compre- hensive, true to their principle, maintain that only those marriages should be dissolved which the infidels contract in the first degree of either lineal or collateral consanguinity. The advocates of the third opinion, least compre- hensive, base their decision on the fact that it is doubt- ful whether natural law actually forbids any mar- riages except those contracted in the first degree of lineal blood-relationship. Such being the case, they maintain that we must emphasize here the principle that in doubt one is to pronounce in favor of the valid- ity of the marriage. Therefore they conclude that all unions may be ratified on the conversion of the infidel parties except those contracted within the first degree of lineal consanguinity. The others, nisi favor fidei aliter exposcat,^"' should not be dissolved. 338. There is no positive proof or categorical declaration at hand which would help one to decide with certainty that natural law forbids marriages in any other degree except the first of the direct line. Innocent III ^"^ distinctly declares that those who in infidelity contracted marriage (praecisione facta a civili lege) within the second degree of consanguinity, in the collateral line, should not be separated after their conversion. This instruction may be used as a negative argument. Since he does not extend the same privilege to those married within the first degree of collateral blood-relationship, it may be justly con- cluded that persons so married must be separated. "' Gasparei, op. cit., loc. rit., ut supra. '" C. 8, X, De divortiis, IV, 19. 244 The New Church Law on Matrimony. This separation would be the result of natural law pro- hibiting unions in that degree. There is no explicit decree proving that such has actually been the discipline of the Church, though in- direct proofs are not wanting. Thus, for instance, the Sacred Congregation of the Holy Office on two differ- ent occasions has given very extensive faculties to the Ordinaries (and even to the parish priests when re- course to the Ordinary is very difficult and there is periculum in mora, urgente mortis periculo) .^^'^ The tenor of these decrees permits the Ordinary to dis- pense from any and all impediments of ecclesiastical origin excepting the impediment arising from the Holy Priesthood and from affinity in the direct line arising from copula licita. This same faculty is given under the same circumstances to all the Ordinaries and parish priests by the new legislation.'^^ It is admitted that the aforesaid impediments are of ecclesiastical origin. Therefore, had the Church considered the sec- ond and other degrees of lineal and the first degree of collateral consanguinity of the same origin, these also should have been added as exceptional cases withdrawn from the conferred faculty. Since no explicit mention is made of them, and no one has ever presumed to in- clude them in the faculty (for the delegate does not possess a more extensive faculty than the one by whom he is commissioned) the natural inference is that they are impediments of a higher order. 339. Furthermore, there is express legislation en- acted by Provincial Synods and subsequently approved by the Church, ruling that all marriages contracted in infidelity Avithin the first degree of collateral consan- guinity, must be dissolved on the conversion of the '»' Litt. encycl. S. C. S. Off., 20 f ebr., 1888 ; new Collectanea, n. 1685 ; 1 mart., 1889; new Collectanea, n. 1698. "' Cod. Iur. Can., Can. 1043 ; see this work, n. 151 f£. Impediment of Consanguinity. 245 parties/"^ No such declaration can be found as re- gards lineal consanguinity, since it is generally re- garded as founded on natural law, while the former has constituted a bone of contention for many cen- turies. As an additional proof, it may be added that the Council of Trent, legislating on the- dispensation to be given from this impediment, insists that in the second degree the dispensation should not be granted except in very rare cases, and then only in behalf of influential princes and to serve a public cause/"' This insistence plainly indicates that the legislative authority of the Church over this impediment begins with the second degree of collateral blood-relationship. The severity of this decree and the failure to make mention of the other controverted degrees, permit the tacit inference that a higher law has withdrawn from the Church the power to dispense from them. Whether this higher law is natural law or positive divine law (which per- mitted such marriages only in the case of the children of our first parents) has little bearing on the question. The weight of the evidence thus far adduced, when viewed cumulatively, and corroborated by the fact that not a single instance can be advanced in which the Church dispensed from lineal consanguinity or from collateral blood-relationship in the first degree, ought to induce one to pronounce in favor of the first and most comprehensive opinion. Therefore, marriages contracted in infidelity within the controverted degrees as specified above, ought to be dissolved after the con- version of the parties and the persons thus parted ought to be permitted to remarry. "^ Synodus Limana, I, 15 aug., 1582, Mansi, op. cit., vol. 36 bis, col. 199. '" "In secundo gradu consanguinitatis nunquam dispensetur, nisi inter magnos principes, et ob publieam eausam." {De Ref. Matr., sessio XXIV, c. V.) 246 The New Church Law on Matrimony. 340. The canonical discipline as regards this im- pediment binds all baptized persons. At the present time the Church shows more leniency in these matters than in the past. It is certain that for just causes she may and does dispense from the impediment of con- sanguinity in the second and third degrees of the col- lateral line. The Council of Trent in the instruction quoted above enumerates two causes justifying the granting of a dispensation in the second degree of blood- relationship, namely, if it is asked by an influ- ential prince and for public cause. The recent discip- line interprets this decree in the sense that these two causes suffice whether they be taken connectedly or dis- junctively, and even in the case of private persons. 341. The causes for which the Holy See usually dispenses from the equal second degree or from the mixed second touching the first, in the case of illus- trious persons, or persons of noble descent, are the following: (1) Conservation of the noble family and its estate within the family; (2) Avoidance of grave scandal; (3) Infamy threatening a woman of noble birth either on account of carnal intercourse or sus- pected familiarity with a blood-relative ; (4) Non-pos- session of dowry; (5) Bitter enmities that can be healed or avoided by marriage; (6) Marriage con- tracted in good faith, or even in bad faith provided the woman is already with child; (7) Super adult age of the woman. It is to be noted that causes mentioned in points 3, 4, 5, 6, 7, if other, though less consequential reasons concur with them in the same case, are generally con- sidered sufficient to justify the granting of a dispen- sation even in the case of poor applicants.^"^ The rea- sons just given which are looked upon as more grave suffice for a dispensation from the second degree of the "™ Gasparri, op. cit., n. 681. Impediment of Consanguinity. 247 equal line, or from the second and first, and third and first mixed. Any canonical reason will suffice for a dispensation from the equal third degree or second touching the third. The impediment ceases to bind in case one of the contracting parties is related in the fourth degree to the prospective consort, even if it should be fourth mixed with the first.'""' It is understood that the petition for dispensation involves only collateral blood-relationship removed further than the first equal line. A mention of the degree of consanguinity should never be omitted, and if the line should happen to be unequal and the consanguinity multiple, these facts must also be ex- pressed. If the fact of the unequal line was con- cealed, provided the degree expressed in the petition is less remote (and the one concealed more remote) the dispensation is valid. Thus, for example, a peti- tion is asked from the second degree. If in reality it should happen to be second mixed with the first, the dispensation is invalid. If it should be the second mixed with the third, the dispensation is valid. Such was the discipline under the old law. Though the new law fails to legislate specifically on these points, it would seem that the former discipline Avill remain in force. 342. The third degree of consanguinity has been placed in the category of minor impediments, there- fore the dispensation granted from such a degree is also regarded as minor. Such being the case, obrep- tion or subreption does not vitiate the dispensation. The mere exposition of the fact of consanguinity suffices, and the dispensation retains its validity even if it should happen to be asked and granted on fictitious "" SCHMALZGEiJBER, op. cit., p. Ill, tit. XIV, a. 60 ; Gaspaeri, op. cit., n. 682. 248 The New Church Law on Matrimony. grounds."" It is further to be noted that dispensation in any degree of consanguinity is valid though the peti- tion or concession should contain an oversight about the degree, provided the actual degree is inferior to the one expressed. The same is to be said in case a co- existing impediment of the same kind in similar or inferior degree, should be withheld."^ 6. Ecclesiastical Penalty and the Exposure of the Impediment. 343. Consanguineous persons attempting to con- tract marriage without a dispensation are guilty of incest. The Gratian collection enumerates several penalties to which such parties were liable unless ex- cused by ignorance or fear. Thus, for example, they were declared infames by both civil and ecclesiastical law ; ^'"' they were separated and, if they attempted marriage in bad faith, neither of them could remarry during the life-time of the other."' They were to be separated from the communion of the faithful,"* and the children of such parents were not to succeed to paternal inheritance."^ Schmalzgriiber mentions other penalties besides those already enumerated."' The Council of Trent imposes separation and intimates that such persons, if in bad faith, should give up all hope of ever being dispensed, especially if the mar- riage has been consummated.'" The censure of ex- communication fulminated by Clement V was repealed by Pius IX in his Constitution " Apostolicae Sedis" ""Cod. Iur. Can., Can. 1054, and Can. 42. '"Cod. Iuk. Can., Can. 1052. "" C. 2, C. XXXV, q. 2. '" C. 4, C. XXXV, q. .2. "* C. 3, C. XXXV, q. 8. '"' C. 1, C. XXXV, q. 7. "' De Consanguinitate and Affinitate, nn. 62-63. "" De Reform. Matr., sessio XXIV, e. V. Impediment of Consanguinity. 249 issued on October 12, 1869, but that Constitution au- thorized the Bishops to inflict the same penalty, if they deemed it necessary in particular instances. A vestige of the impediment of incest, which in the opinion of the leading authors ^^* was considered only an impedi- en;t impediment in the past, is still retained in the form of a clause placed as an adjunct to certain dispensa- tions. The tenor of this clause is that a person who knowingly has attempted marriage with one related to him in a forbidden degree of consanguinity, cannot licitly contract marriage without the express permis- sion of the Holy See, not even after the death of the consort in case his attempted marriage was subse- quently revaliditated."" The impediment of consanguinity is public whenever it can be proved in the external forum.^^" Therefore, not only the parties involved but also persons free from suspicion have the right to apprise the ecclesi- astical authorities of the nullity of a marriage con- tracted without a dispensation from an impediment of blood-relationship. The old discipline laid down spe- cial legislation to be followed in all such juridical processes.^*' Since the old discipline still obtains in this respect, parents, relatives by blood or marriage, neighbors, acquaintances, whether Catholic or non- Catholic, all alike possess the right to expose the hid- den fact of consanguinity.^'^ 344. If the parish priest is informed as regards the blood-relationship of two prospective consorts, before he assists at their marriage he must inquire into the ""Wernz, op. oit., n. 412, note 85; Sanchez, op. cit., lib. VII, disp. XV, n. 15; Gasparri, op. cit., n. 683. "'Feije, op. cit., n. 369; Wernz, op. cit., n. 412, note 86; Gasparri, op. cit., loc. cit. ""Cod. Iur. Can., Can. 1037. °" C. 3, X, qui matrvmoninjtm accusare possunt, IV, 18. '■" Acta Apostolicae Sedis, vol. V, pp. 201 ff. 250 The New Church Law on Matrimony. grounds on which such information is based. Should the fact of consanguinity be revealed, a dispensation must be asked. If his investigation should result in a prudent doubt, leaving room for the presence of the impediment of consanguinity, he must abstain from assisting at the marriage without having first con- sulted the Ordinary."*^ The parish priest should not neglect to give heed to a trustworthy informant who undertakes the task of revealing an impediment exist- ing between persons intending to contract marriage. The present canonical discipline,^** as well as the past ^*° insists that those who are in possession of such knowledge, should bring it to the notice of the Church. 345. The ecclesiastical judge or defensor matri- monii is bound ex officio to institute a juridical pro- cedure as soon as he has sufficient data on hand testi- fying to the existence of consanguinity militating against the validity of a marriage. The mode of procedure which is to be pursued in all such cases is* described extensively in the instruction given by the Sacred Congregation of Propaganda which in its sub- stance is retained by the new Code. For the present it will suffice to know that no marriage may be de- clared invalid unless the evidence against its validity is absolutely convincing (prohatio plena reqtdritur; semi-plena non swfficit). It is precisely in this feature that the two processes, namely, the one instituted for marriage to be contracted, and the other for matri- mony already contracted, differ. In the first instance the marriage is suspended or prevented (without dis- pensation), though the evidence on hand does not ab- ='»C0D. luE. Can.,. Can. 1031. '"O??. cU., Can. 1027. '"' C. 10, X, de cognatione spirituali, IV, 11 ; c. 3, X, de eo, qui cog- novit, IV, 13; c. 9, X, de testihus et attest., II, 20; e. 3, X, de matrim. contr. contra interd. Ecelesiae, IV, 16; c. 27, X, de sponsalibus et mat- rimoniis, IV, 1 ; t. 3, X, de clandestma desponsatione, IV, 3 ; c. 13, X, de desponsatione impuberum, IV, 2. Impediment of Consanguinity. 251 solutely prove the existence of the impediment in ques- tion ; such would be the testimony of a person Avorthy of belief,'*" or publica fama.^" {Probatio semi-plena de consanguinitate sufficit ut matrimonium contrahen- dum impediatur.) In order that the doubt as to the fact of the existing consanguinity may be solved, all sources calculated to shed light on the case under investigation should be diligently consulted. Reliable data will be furnished in this matter by the authentic records of marriages, baptisms and interments,"** which evidence ought to be corroborated by the testimony of witnesses worthy of belief. The discipline of the Church in the past per- mits one to conclude that the testimony of two wit- nesses, especially if they should be relatives of the parties in question, will certainl>' constitute sufficient evidence {probationem plenam).^^^ 7. Civil Legislation. 346. The Civil Law of the different nations gener- ally conforms to the Canon Law in as much as it does not discriminate between consanguinity arising from the tie of legitimate procreation and that arising from natural procreation. A lack of uniformity prevails in the Civil Law as to the degrees within which consan- guineous marriages are prohibited. In England the statute (32 Hen. VIII, c. 38) of Henry VIII, repealed by his son Edward VI, but revived by Elizabeth (I Eliz., c. 1), restricted the prohibition of such unions "°C. 4, 27, de sponsalibus et matrimoniis, IV, 1; S. C. C, 4 iau., 1884; ib., Wernz, op. cit., n. 423, note 92. '" C. 2, X, de consang. et Affi., IV, 14 ; C. 3, X, de matr. contracto contra interd. Ecc., IV, 16. '"Inatr. S. C. de Prop. Fide, 1883, new Collectanea, n. 1587; 14 ian., 1884, in the Acta S. Sedis, vol. XVII, pp. 178 ff. '"C. 1-4, C. XXXV, q. 6; c. 1, 14, X, de consang. et Affi., IV, 14. 252 The New Church Law on Matrimony. within the "Levitical degrees." The prohibited mar- riages were those contracted between persons in the ascending and the descending line in infinitum, and in the collateral line to the third degree inclusively ac- cording to the computation of the Civil Law. The Act of 1835 decreed that : ' ' All marriages which shall here- after be celebrated between persons within the pro- hibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever." Before this enactment such marriages had been regarded as only voidable. The English law has been transplanted into Scotland practically in its native form, but it has been some- what modified in the United States of North America. The States of New Hampshire, Ohio, Indiana, Kansas, Arkansas, Nevada, Washington, North Dakota, South Dakota, and Montana have for a long time prohibited consanguineous marriages between first cousins. The example of the foregoing States was subsequently fol- lowed by Louisiana, Oregon, Pennsylvania, Michigan, Nebraska, Utah and Wisconsin. In France the code of Napoleon forbids marriages between (art. 161) all descendants and ascendants legitimate or natural in the direct line, and between (art. 162) brother and sister, legitimate or natural, and between (art. 163) uncle and niece or aunt and nephew.^^" The Civil Law in Italy,'^^ Hungary and Switzerland conforms to the Civil Law of France. The Civil Law of Spain distinguishes betwen consanguinity arising from a legitimate and that arising from a natural bond. In the former instance the impediment extends to the second degree of collateral blood-relationship, in '" De Smet, op. cit., n. 301. Scholion, III. "^ Mcmuale de Udienza, Codice Civile, tit. V, Bel matrimonio, see. II, art., 58 and 59, p. 18, Ifilano, 1911. Impediment of Consanguinity. 253 the latter it is restricted to the first degree of the same line. The civil authority according to art. 85 of the Spanish Code reserves to itself the right to dispense for just causes in the third and the fourth civil degree of legitimate consanguinity.^'^ In Germany all marriages are null and void between descendants and ascendants in the direct line, and be- tween brother and sister of whole or half blood in the collateral line. The German Civil Law on this point was incorpo- rated into the Civil Code of the State of New York of the United States of North America.'"^ 347. As is seen from the foregoing exposition of the civil legislation, the present discipline of the Church on this impediment approaches more closely the discipline of the Civil Laws owing to the elimina- tion of the fourth degree. Needless to say that this relaxation favors only those who are under the juris- diction of the Church, namely, who are baptized. If the Civil Law of a country should forbid marriages up to the fourth degree of consanguinity, a Catholic and an infidel, related in the fourth degree could not con- tract a valid marriage by the mere fact that they ob- tained a dispensation from the impediment of dis- parity of worship. The unbaptized party in the case would be bound by the civil diriment impediment of consanguinity, and unless a dispensation from the state is obtained, no valid contract can be made be- '"Wbrnz, op. cit., n. 424. °"' For £t more comprehensive exposition of the civil legislation on this point the reader is referred to the following works: Evebslbt, The Law and Domestic Relations, London, 1906; Geary. Marriage and, Family delations, London, 1892; Murray (Scotland), The Law Relating to the Property of Married Persons, Glasgow, 1892; Bishop (America), Mar- riage, Divorce and Separation, Chicago, 1892; Neustadt, Kritische Studien sum Familienrecht des biirgerlichen Gesetzhuches, Berlin, 1907 ; AndriS-Wagner, Diet, de droit canon., Paris, 1901 ; art., "Mar- iage," "Affinite"; Desmond, The Church and the Law, Chicago, 1898. 254 The New Church Law on Matrimony. tween the two. This inference is based on the new law.''* X. Impediment of Affinity. (Canon 1077.) 1. General Notions about Affinity. 348. Affinity in the present canonical discipline is a bond of relationship arising from valid marriage (ratified, or ratified and consummated) '"^ between the husband and the blood-relatives of the wife, and be- tween the wife and the blood-relatives of the husband. The two consorts do not become related in the strict sense of the term, they are only the source of relation- ship.'"'* Since the Church condemned the principle of Nestorius holding that affinity begets affinity, the blood- relatives of the husband do not become related to those of the wife, or vice versa. Affinity is always re- stricted to persons related to the consorts by consan- guinity. No relationship is acquired on the part of one of the consorts with persons related to the other consort by marriage. In order that affinity may arise, the contracted mar- riage must be valid. An extra-conjugal carnal inter- course or a putative marriage will no longer constitute a source of affinity. The two consorts are the source (stipes) from which affinity originates. The wife is the stipes of affinity arising between her husband and '" "Quanquam impedimentum ex una tantum parte se habet matri- monium tamen reddit aut illicitum aut invalidum." (Cod. Iub. Can., Can. 1036, §3.) ""Cod. Iur. Can., Can. 97, Jl; e. 11, C. XXVII, q. 2; c. 3, C. XXV, q. 5; c. 1, C. XXV, q. 10; c. 5, X, de consanguinitate et affinitate, IV, 14; Bbnedictus XIV, ep. enoycl. 'Inter omnigenas," 2 febr., 1744, §15; C. S. S. Off. (Yunnan), 20 sept., 1854; instr. (ad Ep. S. Alberti), 9 dec, 1874; instr. (ad Vie. Ap. Nankin.), 26 aug., 1891. "« Gasparri, op. cit., n. 688; SCHMALZQRtiBBR, op. cit., p. Ill, tit. XIV, n. 89; c. 20, C. XXX;iI, q. 7; c. 13, 22, C. XXXV, q. 2, et 3; c. XXXV, q. 5; c. 5, X, de consangumitate et affinitate, IV, 14. Impediment of Affinity. 255 her blood-relatives. The husband is the stipes of affinity arising between his wife and his blood-rela- tives/" In affinity there are no generations. The terms "line" and "degree" refer to the consan- guineous relatives of the respective consorts. 349. In order to compute the degrees of lineal or collateral affinity, one must apply the following prin- ciple : The degree and line of consanguinity determine the degree and line of affinity. A person related to one consort in a certain line and degree of consanguinity becomes related to the other consort in the same de- gree and line of affinity.'^' A. 1. In the direct ascendental line the relatives (affines) are: I. degree: father-in-law (socer), mother- in-law {socrus) ; II. degree : wife's or husband's grand- father {prosocer), wife's or husband's grandmother (prosocrus) ; III. degree: wife's or husband's great- grandfather {absocer), wife's or husband's great- grandmother (absocrus). A. 2. In the direct descendental line the affines are : I. degree: son-in-law {gener), daughter-in-law (nurus) ; II: degree: grand-daughter's husband (pro- gener), grandson's wife (pronurus) . B. 1. In the ease of second marriage the relatives in the direct ascendental line are: I. degree: step- father (vitricus), step-mother (noverca) ; II. degree: grandmother's husband (provitricus) , grandfather's wife (pronoverca). B. 2. In the descendental direct line the affines are : I. degree: stepson {privignus, son of a father or mother born of a former marriage), stepdaughter {pri- vigna, daughter of a father or mother born of a former marriage). '"'Cod. Iue. Can., Can. 97, $2. '•■Cod. Iur. Can., Can. 97, $3; c. 3, C. XXXV, q. 5; S. C. S, Off., inatr. (ad Archiep. Quebeoen.), i6 sept., 1824, ad 2, 4. 256 The New Church Law on Matrimony. C. In the collateral line the affines are: I. degree: brother-in-law (levir), sister-in-law [glos); brother's wife (fratria), sister's husband (sororius). The other relatives have no special name. They are designated by the various degrees of affinity/^^ 350. Affinity is multiplied as often as the consan- guinity is multiplied.*"" A person related to one con- sort by a double tie of consanguinity becomes related to the other by a double tie of affinity. Thus, for in- stance, Charles contracted marriage with Agnes, if Agnes should happen to be twice related to Cecilia in two different degrees of consanguinity, then Charles also becomes twice related to Cecilia in the same de- gree of affinity. Affinity is multiplied also by a mar- riage contracted successively with a blood-relative of the deceased consort."' If Joseph should marry suc- cessively Agnes and Cecilia, related to Bertha in the first and the second degree of consanguinity respec- tively, he becomes twice related to Bertha. 2. History and Nature of the Impediment. 351. The impediment of affinity is a mere enforce- ment, in a modified form, of the prohibition of the Mosaic Law. Leviticus forbids marriages between relatives in the first and the second degree of the direct line, in the first degree of the collateral line, and in the first degree mixed with the second of the same line, be- tween a man and the widow of his father's brother.*"^ By prescribing that the surviving brother should marry the childless widow of his deceased brother, the law of the levirate removed from such cases the ban under which they were placed by the general law, by ™° Santi-Lbttneb, h. t., n.'34; Gasparri, op. cit., n. 691; Giovine, op. cit., $303. ""Cod. Iub. Can., Can. 1077, §2, n. 1. «" Op. cit, Can. 1077, $2, n. 2. "'Levit. XVIII, 8 ff.; XX, 20, 21. Impediment of Affinity. 257 virtue of its prohibition directed against affinity in the first degree of the collateral line."* The cause of affinity in the Roman Law was a valid marriage {iustae nuptiae) even if unconsummated. The prohibition of marriage was confined to lineal affinity, namely, between stepfather or stepmother and stepdaughter or stepson (the two born of a previous marriage) ; and between father-in-law or mother-in- law and daughter-in-law or son-in-law."* 352. The Mosaic and the Roman Law are the two sources on which Canon Law has drawn as regards its legislation concerning affinity. For the first three cen- turies the Church contented itself with the mere en- forcement of the Mosaic Law. Towards the end of the third and in the first quarter of the fourth century there are evidences proving that the Church has ex- tended the impediment beyond the degrees specified in the Mosaic Law and began to legislate independently of any civil influence."" The Councils of Elvira (300- 306) "« and of Neo-Caesarea (314-325),'"" as well as the Synod of Rome,*"* establish this fact beyond doubt. The various Councils held in Gaul in the sixth and the seventh century either emphasized the already exist- ing discipline or introduced new legislative measures modifying the impediment of affinity by extending it to further degrees. They threaten with severe penalties one who should attempt to marry "the widow of his brother, or the sister of his wife, or his stepdaughter, or his stepmother, or the widow of an uncle whether *"I»e«t. XXV, 5; Matt. XXII, 24; Mark XII, 19; Luke XX, 28. "•Webnz, op. cit., n. 429; De Smet, op. cit., n. 307; Esmein, op. cit., vol. I, pp. 375 ff. ; ^7, iTist. de nuptiis, I. 10; L. 14, §4, D. de ritu nup- tiarum, XXIII, 2; L. 4, ^$3 sq., I), de gradibus, XXXVIII, 10; L. 17, C. de nuptiis, V. 4. "'Weenz, op. cit., n. 429; Esmein, op. cit., vol. I, p. 375. "* Mansi, op. cit., vol. II, col. 15, c. 61. *" Mansi, op. cit., vol. II, eol. 540, c. 2. "' Mansi, op. cit., vol. Ill, col. 1137 and 1138. 258 The New Church Law on Matrimony. on the father's or on the mother's side." The canon- ical discipline adopted at these CouncUs was subse- quently incorporated into the civil Codes of Burgundy, of the Visigoths in Spain, of the Longobards in Italy and of other nations. The reason adduced in favor of the impediment of consanguinity may be applied to that of affinity, but it does not possess the same force. By virtue of the conjugal intercourse, which is the cause of affinity, a certain similarity is established between the two im- pediments owing to the natural bond which such an intercourse creates between one consort and the blood- relatives of the other.*"" The reverence, respect and love which this particular tie occasions, are ill disposed to encourage conjugal alliances among the persons thus related.*^" The legislation of nations not altogether untutored, as well as the Roman law,*" intimates that the voice of nature makes itself heard by dissuading from such unions. 353. The impediment of affinity being closely allied with that of consanguinity, there was a tendency to limit both to the same degree. This was done by the Council of Rome (1059) *" by virtue of whose legisla- tion the two impediments reached the seventh, their furthest prohibitory degree. But the force of the pro- hibition attached to the last two degrees remained a controverted question. In some localities they were regarded as diriment, in others only as impedient im- pediments.*" The early discipline of the Church was rendered "• C. 15, C. XXXV, q. 2 and 3 ; St. Thomas, Snppl. Illae, p., q. LV, a. VI, ad 1 and 2. ""Whinz, op. (At., n. 431; Gasparei, op. cii., n. 697. '" 56, Inst, de nupt., I. 10; L. 16 sq., D. soluto matrvm.o.nio , XXIV. 3. "' Mansi, op. cit., vol. XIX, col. 909. . *" C, 1 8, X, de eonsanguinitate et affinitate, IV. 14 ; Sanchez, de vmped. off., lib., VII, disp. LXVII, u. 3; Petri Lombardi, lib. IV, ia Sent., dist. XLI. _. Impediment of Affinity. 259 very complicated on this point and it unnecessarily af- fected many persons by the fact that the accepted cus- tom distinguished four different kinds of affinity. The period in which the impediment arising from illicit affinity (from extra-matrimonial carnal intercourse) was introduced into the canonical discipline, is a dis- puted question. Whether its first trace is found in the pseudo-Isidorian decretals, or whether it was anterior to their date,"* has little bearing on the present ques- tion. Suffice it to say that about the ninth century the first kind of affinity arose through either matrimonial or extra-conjugal carnal intercourse.*" The other kinds of affinity were introduced after that date, though some traces of them may have been found in some few localities even at that time. Wernz remarks that no vestige of any other than the first kind of affinity can be discerned in the canonical discipline en- forced before the eleventh and twelfth centuries. 354. The second kind of affinity established a bond of relationship between the man and the affines (by the first kind of affinity) of the woman, and vice versa. Thus if a man contracted marriage with a widow, the affines of the woman by the first marriage became re- lated to the man by the second kind of affinity, and vice versa. The third kind of affinity arose between the man and the affiles related to the woman by the second kind of affinity.*'^ There was yet a fourth kind of affinity resulting from generation rather than from carnal intercourse, affecting the children born of a second marriage {soholes ex secundis nuptiis). The ««ESMEIN, op. cit., vol. I, pp. 377 ff.; Webnz, op. cit., loc cit.; Freisen, op. cit., pp. 449 ff.; Sanchez, loc. cit., lib. VII, disp. LXV, n. 8; and disp. LXVII, n. 3. "»C. 12, 21, 22, C. XXXV, q. 2 and 3. "' Santi-LiEITNEr, op. cit., h. t., n. 18 ; Bubtsell, in the Catholic En- cyclopedia, art., "Affinity"; Gasparri, op. cit., n. 689; Benedict XIV, De Synodo Dioecesana, lib. IX, c. XIII, n. 2. 260 The New Church Law on Matrimony. widow who married remained aifined to the relatives of her first husband even after his death, and transmitted this affinity to her second husband. Her children by the latter were forbidden to contract marriage with persons related to her deceased husband within the fourth degree.*" The tendency to give so wide a range to the impedi- ment of affinity was checked by Innocent III, who in the fourth Lateran Councir(1215) abolished the last named kinds of affinity. Thus only the first kind of affinity was retained, and that was restricted to the fourth degree. It could arise either from extra-matri- monial or from conjugal carnal intercourse."' This impediment was submitted to another modifica- tion by the Fathers convened in the Council of Trent. As to licit affinity, the discipline of the Fourth Lateran Council was retained intact. The impediment of illicit affinity, arising from extra-matrimonial intercourse, was restricted to the second degree of the collateral line."" The last stage of development is found in the new legislation in which this impediment, like the impedi- ment of consanguinity, has been officially canonized. The impediment of affinity can no longer arise from two sources, namely, from licit and illicit carnal inter- course. In the new discipline the impediment of illicit affinity has been abrogated, and only that of licit affin- ity retained with a modification. This latter forbids marriage in all the degrees of lineal affinity, but the prohibition is restricted to the second degree of col- lateral affinity."^" '"C. 2, 3, 4, C. XXXV, q. 10; Esmein, op. cit., vol. I, p. 381; De Smbt, op. cii., n. 307. "' Cone. Lateramense IV, cap. 50, see Mansi, op. cit., vol. XXII, col. 1035 ; C. 8, X, de consangumitate et affinitate, IV. 14. "' De Reform, mat., sessio XXIV, cap. IV. «" Cod. Iur. Can., Can. 1077. Impediment of Affinity. 261 3. Derivative Force of the Impediment. 355. It has been a much mooted question whether a marriage contracted in any degree of affinity is invali- dated by virtue of natural law. No authors of note have ever claimed that natural law invalidates mar- riage between affines beyond the first degree of the direct line, whether the affinity is legitimate or illegiti- mate. 356. It is generally admitted that carnal inter- course, whether licit or illicit, establishes a natural bond between each of the parties and the blood-rela- tives of the other."" This natural bond arises even in infidelity, but it does not possess the force of invalidat- ing a marriage between persons thus related.*" As far as lineal or collateral affinity arising in the first degree by means of extra-matrimonial carnal in- tercourse is concerned, the foregoing statement has never been questioned. In all such instances for just and grave reasons the Church has repeatedly granted a dispensation, which she could not presume to do, if she held that natural law invalidates such unions. The question is more difficult of solution as regards lineal affinity in the first degree arising from valid and con- summated marriage. There are, however, enough con- vincing proofs to show that even in that degree the diriment impediment is not one of natural law but of ecclesiastical law."" The attitude of the Church in de- clining for a long time to dispense from licit lineal affinity in the first degree must be explained on the ground of inexpediency. Benedict XIV "" reprimands "' D'Annibale, op. cit., vol. I, n. 62 ; Wbbnz, op. cit., h. t., foot-note 43; Gasparri, op. cit., n. 687; ScHMALZGRtJBER, op. cit., p. Ill, tit. XIV, nn. 87 sq.; Sanchez, op. cit., lib. VII, disp. 65, nn. 1 sq. •"Webnz, op. cit., n. 430. **GioviNE, op. cit., 5J305 and 306; Gasparri, op. cit., d. 697; Feije, op. cit., n. 379; Santi-Leitner, op. cit., h. *., nn. 25 ff. *" De Synodo Dioecesana, lib. IX, cap. XIII, n. 4. 262 The New Church Law on Matrimony. the Synod of Lima (1583) for having prescribed sepa- ration in the case of converts who, while in infidelity, contracted marriage within the first degree of affinity. A contrary opinion would be equivalent to maintain- ing, against the teaching of approved authors, that natural law invalidates all marriages contracted in that degree. Therefore Benedict XIV emphasizes the fact that for very grave and urgent reasons the Church may certainly dispense in all such cases. The same truth is accentuated in his encyclical "Aestas Anni." *^^ 357. To refute further the false assumption of the Council of Lama one could adduce the decrees of the Councils of Agde (506),*^" Epaon (517) '" and of Or- leans III (538),*^' which distinctly state that marriages contracted in infidelity with stepmother and step- daughter should not be dissolved. On February 20, 1888, the Holy See gave an extra- ordinary faculty to Ordinaries urgente mortis fericvlo. They were authorized to dispense from all impedi- ments from which the Church itself dispenses. From this faculty the impediment arising from the Holy Priesthood and from lineal affinity in the first degree ex copula licita, is Avithdrawn.*^° That the former is an impediment of merely ecclesiastical origin, no one will deny. Consequently, the latter is withdrawn from the faculty for the same reason. The new discipline urgente mortis periculo grants the same extensive faculties, exempting the same two impediments.*^" The decree of the Holy Office issued on August 26, 1891, settles this question beyond all doubt. It stated expressly that affinity, contracted in infidelity, whether '"Bull. Eom. Gont., vol. IV, App. altera ad torn., Ill, p. II, p. 473. •» Mansi, op. cit, vol. VIII, col. 335, c. 61. '^ Mansi, op. oU., vol. VIII, col. 562, e. 30. *^ Mansi, op. cit., vol. IX, col. 14, c. 10. *=»Litt. eneyel. S. C. S. Off., 20 febr., 1888; new Collectanea, n. 1685, '" Cod. Ins. Can., Can. 1043 ; see this work, n. 151 if. Impediment of Affinity. 263 it results from a licit or an illicit intercourse, should not be regarded as an impediment in the case of mar- riages entered into in infidelity."^ 358. The statement contained in this decree is fur- ther corroborated by the fact that on December 2, 1911, the Sacred Penitentiaria has actually granted such a dispensation to parties whose request for such dispensation had been rejected by the Congregation of the Sacraments.*^^ On another occasion, eight years before, the Eoman Pontiff granted a similar dispensa- tion by word of mouth.'*'' In view of these facts the statements of the canonists who maintained that the Roman Pontiff never dis- penses in lineal affinity must be modified.*'* 359. Concerning the impediment of affinity as it exists in the Oriental Church the same thing is to be said as has been said of the impediment of consanguin- ity. The time, no doubt, is not far removed when its discipline will conform to that of the Occidental Church. Until then the past discipline of the Roman Catholic Church will obtain among the members of the Oriental Rite. Affinity Avill arise only from copula perfecta either from matrimonial or extra-conjugal intercourse, prohibiting and invalidating marriages in both cases in all the degrees of lineal affinity, and in collateral affinity to the fourth canonical or eighth Ori- ental degree (in case of legitimate affinity), and to the second canonical or fourth Oriental degree in case of *" "Affinitatem quae in infidelitate naturaliter contrahitur ex copula turn lieita turn illicita non esse impedimentum pro matrimoniis quae in infidelitate ineuntur." (Instr. S. C. S. Off., 26 aug., 1891; new Col- lectanea, n. 1766. "'Le Canoniste Contemporain, vol. XXXV, 1912, pp. 659 ff. *»»De Smet, op. cit., n. 306; Nouv. Sev. Thiol., 1912, pp. 528 ff.; Collat. Brug., 1912, pp. 674 ff. "* Perbone, op. cit., vol. II, pp. 138 ff. ; Schmalzgrubek, op. cit., p. Ill, tit. XVI, n. 141 ; Wernz, op. cit., n. 430 ; Gasparri, op. cit., n. 703; PUTZEE, op. cit., n. 220; Benedict XIV, quoted above; et alii. 264 The New Church Law on Matrimony. illegitimate affinity."^ The discipline prevailing among the Maronites extends this impediment to the seventh degree according to the civil computation."" The Constitution of Benedict XIV, "Etsi pastgr- alis," affecting the Italo-Greeks, prohibits marriage within the fourth degree of affinity according to the canonical computation/" With the consent of the Holy See a provincial Council *'* legislated that legitimate natural relationship will invalidate marriage up to the seventh degree (civil computation) in the first kind of affinity. As to the second kind of affinity (arising between the blood-relatives of the two consorts) it was decided that it must be retained wherever it is in force and it will invalidate marriages up to the seventh degree, "ita tamen ut confusione nominum haud interveniente turn in septimo turn in sexto gradu impedimentum dirimens minime con- stituat." At the same time the impediment arising from illicit affinity was restricted to the fourth de- gree.*'' 4. Dispensation from the, Impediment. 360. As stated above the natural bond of affinity arising between two infidels does not possess an in- *" Synodus Soiarfensis Syrorum, Rome, 1896, art., XV, $8, n. 12; Synodns Alexandrina Coptorum, Romae, 1899, art. VIII, §5, n. 9. "Hinc afiSnitas semper aderit si facta fuerit coneeptio (Lehmkuhl, op. cit., vol. II, n. 998), vel eiamsi ilia facta non fuerit si vir membro virili vas mulieris penetravit, et, rupto hymene, semen in vaginam de- posuit." Acta Sanctae Sedis, vol. XXVII, pp. 339 ff. ; Weenz, op. cit., n. 432 ; Gasparri, op. cit., nn. 686 and 687 ; Db Smbt, op. cit., n. 302 ; Pbije, op. cit., n. 370; De Becker, op. cit., p. 185; Mansella, op. cit., pp. 50 ff. '" Synodus Mont. Lybani (1736), in Collect. Lac, vol. II, col. 161 sq. ; ib., Wbrnz, op. cit., n. 442. '"Benedict XIV, 26 mail, 1742, Bull. Eom. Cant., vol. I, p. 197, J8, II. 5. '"Cone. Alba luliense (1872), p. 96; ib., Wernz, op. cit., n. 442. "• Papp-SzilAgyi, op. cit., pp. 44 flf. ; Zhishman, loc. cit., pp. 290 ff.; MiLASCH, Das Kirchenrecht der morgenlandischen Kirche, p. 614. (Mostar, 1905) ; Mansella, op. cit., pp. 57 flf. Impediment of Affinity. 265 validating force. However, the individuality of the bond thus contracted, by virtue of ecclesiastical law, becomes endowed with a diriment force after the con- version of one or both parties in question."" The conversion, however, does not affect marriages con- tracted validly in infidelity. It extends only to pros- pective marriages, and to those invalidly contracted in infidelity, on account of an intervening impediment other than that of affinity. The impediment of affinity affects all baptized persons regardless of the sect in which the baptism was administered. The marriage of two infidels is invalid if the civil law should sanction the diriment force of the impediment of affinity. If two infidel affines should contract marriage invalidly, and only one of them should embrace the Catholic faith, not only the impediment of disparity of worship but also that of affinity would interfere with the valid- ity of their marriage. 361. According to a principle formerly accepted, the Church, when dispensing from the impediment of disparity of worship, intended simultaneously to dis- pense from that of affinity, unless it should happen to be legitimate lineal affinity in the first degree, in which the Church has not dispensed until very recently. This principle is not in harmony with the new law, con- sequently it must be discarded. It may be said, how- ever, that since the Church, owing to the relaxation of her discipline on this point, has already vouchsafed dispensations from the impediment arising from the first degree of legitimate lineal affinity, it probably will not decline to grant a similar favor in the future when the need of legitimating children already born of such union would make it imperative. 362. The dispensation granted in the past from ""Instr. S. C. S. Oflf., 26 aug., 1890 (ad Vic. Ap. Nankin.), new Col- lectanea, n. 1766. 266 The New Church Law on Matrimony. illegitimate lineal affinity contained the conditional clause: Provided the intercourse with the mother of the prospective wife did not precede the birth of the latter.*" This adjunct was intended to obviate the possibility of a man espousing his own natural daugh- ter. While in the future such affinity will no longer arise from extra-matrimonial intercourse, it will be the duty of the parish priest to investigate carefully all such cases, if he should be aware of the illegitimate birth of the prospective spouse. If it should not be possible, physically speaking, that the woman in ques- tion could be the offspring of the man, the latter may marry her without dispensation. In all doubtful cases the advice of the Bishop should be asked. In the past the impediment of affinity, as is seen from the foregoing exposition, could arise from two sources, namely, from a licit and an illicit intercourse. The new discipline deprives of its invalidating effect the impediment arising from illicit affinity. It may happen, however, that a person who contracted such an affinity while the old discipline was in force, after the promulgation of the new Code might intend to marry the person to whom he is thus related. In all such instances, since the marriage is not forbidden, the affinity which arose under the old discipline will be implicitly removed by the new. Collateral affinity in the second degree is a minor impediment consequently, a dispensation once granted from it wiU be valid irrespective of an error, and re- gardless of obreption and subreption.*" Since the im- pediment of collateral affinity is restricted to the sec- ond degree, whenever, in unequal line, one of the de- grees falls below the second, the impediment ceases. '" Db Smet, op. eit., n. 306 ; Giovinb, op. cit., J307, n. 4 ; Wernz, op. cit., n. 438. •"Cod. Iur. Can., Can. 1042, $2, n. 4. Impediment of Affinity. 267 Thus collateral affinity in which the third degree touches the first, does not constitute a matrimonial im- pediment. 5. Penalty Attached to this Impediment. 363. The censure the authors mention generally in coimection with this impediment is to be interpreted by way of particular, namely, provincial or diocesan legislation. In the early discipline of the Church by virtue of general legislation a censure latae sententiae non reservata was incurred by persons who attempted marriage without dispensation with any one known to be related to them in a prohibited degree of consan- guinity or affinity."" The Constitution of Gregory XIV, "Sicut antiquus," issued on March 1, 1590,"* instructs the Ordinaries that they should penalize with severe ecclesiastical censures persons who without the neces- sary dispensation attempt to contract marriage in the second degree of consanguinity or affinity. Though the Constitution of Pius IX, " Apostolicae Sedis," is- sued on October 12, 1869, abolished the Clementine cen- sure ipso facto incurred, it did not prohibit the inflic- tion of one ferendae sententiae for the same transgres- sion. 364. The new legislation declares infames all per- sons guilty of incest.*" This infamy is called infamia iuris, for it is attached to certain determined acts,**" as in this case to a sin against the sixth commandment with one 's blood-relative or affinis.**' The consequences "°C. nn. de consangwmtate et afflnitate, in Clem.; ib., Putzeb, op. eii., n. 222; HoiiWECK, Evrchliehe Strafgesetze, p. 267, §§169 ff.; SCHMAliZGRiJBEB, op. cit., p. Ill, tit. XIV, nn. 115 ff.; Weenz, op. eit., 11. 439. "*Freib. KirchetUex., ed. 2, vol. II, eol. 1493; ib., Putzbe, op. cit., ut supra. ""Cod. Iur. Can., Can. 2357. **■ Op. cit., Can. 2293, §2. *" C. 2, 4, X, de eo, qui cognovit consanguvneam uxoris sitae vel sponsae, IV. 13. 268 The New Church Law on Matrimony. of this infamy are manifold. It communicates irregu- larity. It renders one incompetent to obtain any eccle- siastical benefices, pensions, offices or dignities. It incapacitates one for performing legitimate ecclesi- astical acts "* and for exercising any ecclesiastical right or function.^*" This kind of infamy is not re- moved without a special dispensation granted by the Holy See."" 365. Affinity, as established by the new law being a public impediment by its very nature may be exposed by any person, like the impediment of consanguinity. Therefore, in this respect, the same principles are to be applied to both impediments.*" 366. An adulterous intercourse with a blood-rela- tive of one's true consort establishes an affinity be- tween husband and wife, but the affinity thus occa- sioned does not invalidate the marriage.*"^ The con- trary opinion was held for a while which permitted the innocent party to remarry, but the guilty consort as well as his accomplice, if single, had to remain single all their life.*^' Though to adulterous incest for a cen- tury was attributed the force of dissolving marriage, such an effect was always denied to adultery com- mitted with a non-consanguineous relative of the other consort.*" It must, however, be borne in mind that this discipline was localized and was never approved by the universal legislation of the Church.''" Even '" See this work, n. 270. '"God. Iuk. Can., Can. 2294. '" Op. Bit., Can. 2295. "' See this work, n. 343 ff. ; St. Thomas, Suppl. Ill, p., q. LV, a. X and XI, e. '" St. Thomas, op. cit,, q. LV, a. VI, c. ; again, op. cit., q. L, a. I, ad 7. <" Cone. Vermer. (753), e. 2, 10, 11, 12, 18; e. 21, 24, C. XXXII, q. 7; c. 30, C. XXVII, q. 2; Esmein, op. cit., vol. I, p. 382; e. 19, C. XXII, q. 7. '" C. 22, C. XXXII, q. 2. "■' Hefele, Histoire des Conciles, t. Ill, 2me partie, p. 920, Paris, 1910. Impediment of Affinity. 269 the provincial councils held in the ninth century failed to approve it.**° Furthermore, the Decretals of Greg- ory IX insist emphatically on the absolute indissolu- bility of a consummated Christian marriage, even if one of the consorts should happen to be guilty of in- cestuous adultery. 367. As a penalty for such crime the former dis- cipline deprived the guilty party of the right petendi debitum conjugale, though he is was not freed from the obligation reddendi debitum when the innocent party demanded it. In order that such a right may be lost on the part of the offender, incestus adulterinus debuit esse formalis, consum?natus, non tantum incho- atus, neqiie vi vel metu gravi extortus. Furthermore, the incest had to be committed with a person related to the other consort within the first or the second de- gree of consanguinity.*" The affinity was not con- tracted, nor was the penalty incurred, in the case of incestus adulterinus patratus cum propriis consan- gmneis. The new law states distinctly that all penal- ties whether spiritual or temporal, medicinal or so- called vindictive, whether latae or ferendae sententiae, are abrogated unless they are expressly mentioned in the new Code.*°' Since the loss of the ius petendi debi- tum was a temporal penalty occasioned in consequence of a specified moral offence, and since the Code fails to refer to it, the conclusion is forced on us that such a penalty is no longer incurred. 368. The reader's attention has already been called to the relaxation of the discipline of the Church as re- '" C. 1, 6, X, de eo, qui cognovit consanguineam uxoris suae vel sponsae, IV, 13 ; the statutes of the provincial councils held in the ninth century, see Hepele, op. cit., loc cit. '"Cone. Trid., De Beformatione matrimonii, e. IV; Wbrnz, op. cit., n. 441. '" Cod. Iur. Can., Can. 16, n. 5 ; for former discipline consult Gio- viNE. op. cit., §302; Feijb, op. cit., n. 383; Putzer, op. cit., u. 124, p. 161. 270 The New Church Law on Matrimony. gards the impediment of affinity. It was owing to this tendency to leniency that the two dispensations re- ferred to above in the first degree of lineal afiSnity were made possible. Thus the prediction of Grasparri that the Church will never dispense in such affinity has failed."" In the past it was against the practice of the Sacred Congregation to grant a dispensation in any degree of licit lineal affinity.*'" Such dispensations will naturally be rendered more obtainable in the future. As to collateral affinity the Church never declined to dispense, even in the first degree, though a grave cause was required in case a widow wished to marry the brother of her deceased husband. The cause had to be even more grave in case the widow had offspring by her former husband. The instruction contained in the encyclical of Gregory XVI, issued on May 22, 1836, may be applied also to cases of collateral affinity. Since by nature the bond of consanguinity is stronger than that of affinity, the causes for granting a dispen- sation from the latter impediment suffice even if they should be less grave than those required for dispensa- tion from the impediment of consanguinity. 6. Civil Legislation. 369. The present legislation of the Church con- forms to the Eoman and the Civil liaw inasmuch as it requires a valid marriage for the contraction of affinity. In the eyes of the Civil Law, as a rule, the bond of affinity retains its force though the marriage which occasioned it should be annulled by judicial process (divorce). This bond, however, is dissolved if the marriage should be declared nuU and void from the '" Gaspabbi, op. cit, n. 703. ""AvANZANi, Acta Samtae Sedis, vol. II, 127. Impediment of Affinity. 271 very beginning, having been originally unlawful on account of some civil prohibition. The Code of Napoleon (art. 161) bases the impedi- ment of afiuiity on valid marriage regardless of its consummation.*" It prohibits marriage in every de- gree of the direct line and in the first degree of the collateral line (art. 162). Dispensation can be granted only by the supreme ruler.*"^ The Code of Italy in this respect conforms to the Code of Napoleon. After repeated introduction and rejection the English Parliament finally adopted in 1906 the "Colonial Marriage Act" by virtue of which marriages with a deceased wife's sister were permitted for the colonies. In 1907 the same enactment was ex- tended to England itself under the title "Deceased Wife's Sister Marriage Act.""" The law of Germany (§§1310 and 1327) in case of lineal aflSnity prohibits marriage between one consort and the descendant of the other consort, and between the ascendant and the consort of the descendant. The statute fails to distinguish between licit and illicit affinity."* In France all the degrees of lineal affinity but only the first degree of collateral affinity, constitute an im- pediment to marriage (art. 161 and 162). In Spain this impediment may arise from either licit or illicit affinity (art. 84). It prohibits marriage in all the degrees of the direct line and in collateral affinity it forbids marriage up to the second or fourth degree (civil computation), according as it arises from a con- jugal or extra-matrimonial intercourse. *" De Smet, op. cit., n. 307, Scholion II. "" Le Congrfes national, Loi du 28 f ev., 1831, article unique. '" Ejicyclopaedia Britanica (eleventh edition), art., "Marriage" (Eng- land). "* Lehb, Traits Elementaire de Droit CivU Germanique, p. 263, Paris, 1892. 272 The New Church Law on Matrimony. 370. Some Civil Codes impose a severe penalty on those who in bad faith attempt marriage, though re- lated in lineal affinity or consanguinity. Thus, for in- stance, the criminal Code of Germany (§173) penalizes such crime with an incarceration lasting two years, and the Italian criminal Code (art. 337) imposes the same penalty lasting from eighteen months to five years. The prohibition of marriage with a deceased wife's sister has been abolished in most of the States of North America. An exception to this is the State of Virginia,"^ where such a marriage is absolutely vpid."' The statutes of the different states qualify as "void" those marriages that are contracted within the pro- hibited degrees of consanguinity and affinity. The courts, however, by repeated decisions attribute to the term "void" the meaning "voidable." XI. The Impediment of Public Propriety. (Canon 1078.) 371. In the former discipline the consent given in a ratified marriage (whether valid or invalid), or in valid espousals, produced a bond of quasi-affinity be- tween each of the parties and the blood-relatives of the other, just as carnal intercourse is instrumental in inducing real affinity. It is a difficult task to trace the origin of this im- pediment with certainty. Though no uniformity pre- vails on this point among the authors, the opinion of those who hold Roman law responsible for its intro- duction has as yet not been disproved. The Roman law emphasized a Christian principle when it estab- lished the legal rule that in marriage one should not '" BURTSELL, in the Catholic Encyclopedia, art., "Affinity." ""Kelly v. Scott, 5 Gratt. (Va.), 479; ib., Keeser, The Law of Marriage and Divorce, chap. Ill, 525, p. 17, Boston, 1906. Impediment of Public Propriety. 273 consider only what is lawful but also what is becom- ing."" This rule explains the prohibition directed against marriages violating public propriety, as, for example, those between father and the betrothed of his son, and vice versa; between mother and the be- trothed of her daughter ; "* between a concubine and the relatives of the man/"" 372. Owing to the close resemblance existing be- tween the Church and the Roman law on this point there is nothing more natural than to look to the latter for the vestiges of this ecclesiastical impediment. An- other difficulty which is awaiting solution is the de- termination of the particular period in which this impediment was adopted by the Church. AVriters of the ninth century like Benedict the Levite, Hinkmar, and pseudo-Isidore fail even to allude to it. A decretal attributed to Pope Benedict positively rejects it,"* while, on the other hand, other contemporary decrees, which Gasparri brands as apocryphal, speak of it as if it were the universal law of the Church."" For a long time the impediment of public propriety was enveloped in obscurity and several legislative measures enacted by different Pontiffs were required before its identity as an impediment distinct from affinity was clearly established. The legislation of Alexander III (1159-1181) does not shed sufficient light to remove all doubts surround- ing this impediment."'^ Innocent III in the Fourth Lateran Council (1215) lifted the prohibition whereby the offspring of a second marriage was barred from contracting marriage with the relatives of the first hus- *"L. 42 S., De ritu nuptiarum; De Smet, op. cit., n. 308; Gaspaebi, op. cit., n. 706; Wernz, op. cit., n. 448. *" L. 12, $1 and $2; 1. 14 ff., De ritu nnptiarum. '" L. 7, De gradib. et affin. "' C. 18, C. XXVII, q. 2. "' C. 11, 14, 15, C. XXVII, q. 2. '" C. 4, 5, 6, X, de desponsatione impuberum, IV, 2. 274 The New Church Law on Matrimony. band,*" and restricted the impediment to the fourth degree, just as was the case with the impediments of consanguinity and affinity. The suggestion made by the Fathers convened at the Second Council of Lyons (1274) relative to the limitation of this impediment to nearer degrees was not acted upon. With the decree of Boniface VIII the impediment began to assume a more definite form.*'* It was enacted that conditional and indeterminate espousals whose invalidity results from lack of consent cannot give rise to it. Finally the Council of Trent limited to the first degree the impedi- ment arising from betrothment and decreed that only valid espousals can give rise to it.*'^ 373. The Council of Trent did not concern itself^ about this impediment as it arises from a ratified marriage. Therefore until the promulgation of the new discipline one had to be guided by the law handed down in the Decretals, especially through the enact- ments of Boniface VIII. The terms in which the law of that Pontiff is couched occasioned a lively contro- versy. The decree states that the impediment of public propriety arises from marriage (even if not consummated) whether valid or invalid, provided the invalidity was not caused through want of consent. It would be to no purpose to give a detailed account of this controversy, for it is a subject of the past "° with no bearing on the present discipline. 374. The change which the concept of affinity un- derwent in the present legislation*" necessitated a change also in the impediment of public propriety. According to the new law the impediment of public "' C. 8, X, de eonsangumitate et affinitate, IV, 14. ■•"C. un., de sponsalibus et matrimoniis, IV, 1 and 2, in VI°. '■" Seas. XXIV, cap. III. ""Wernz, op. cit., n. 453, note 46; De Smet, op. cU., n. 311; Gas- PARKI, op. cit., n. 722 flf. ; D'Annibale, vol. Ill, n. 434; Peije, op. cit., n. 400 ff. "' Cod. Idk. Can., Can. 97, §1. Impediment of Legal Relationship. 275 propriety arises from invalid marriage whether con- summated or not, and from public or notorious con- cubinage ; and it annuls marriage in the first and in the second degree of the direct line betwen the man and the blood-relatives of the woman, and vice versa."^ The new law specifies two causes which are instru- mental in inducing this impediment, namely, invalid marriage and public or notorious concubinage. A few words must be said on each. The espousals do not give rise even to an impedient impediment, while the ratified marriage occasions the impediment of affinity. 375. 1. Invalid marriage whether consummated or non-consummated is the first- cause giving rise to the impediment of public propriety. The words "ex matrimonio invalido" are to be interpreted in their fullest sense, so as to comprehend even a putative mar- riage which otherwise produces the same effects as the valid marriage. In order that the impediment may arise by virtue of this first cause it is necessary that the parties in question actually attempt to eon- tract marriage, and that their contract have the ap- pearance of marriage {species vel figura matrimonii) in a very wide sense of the term. It is immaterial whether the attempt was made before a civil magis- trate, or before the minister of a religious sect. On this ground the impediment would arise even in the case of a common law marriage if the civil law in the locality in which it took place sanctions such marriages by attributing to them all the effects of a matrimonial contract and they are regarded as means whereby licit marriage relations May be established between a man and a woman. Since the law does not specify any particular cause of nullity we are free to conclude that it does not mat- ter whether the invalidity of the marriage was occa- "' Op. cit., Can. 1078. 276 The New Church Law on Matrimony. sioned by the non-observance of the proper form or by the presence of a diriment impediment. Even if the marriage is contracted in facie ecclesiae, unless it is objectively valid, it will give rise to an impediment of public propriety and not to that of affinity. 376. 2. Public or notorious concubinage is the sec- ond cause giving rise to the impediment of public pro- priety. The question might be asked : When is concu- binage public or notorious 1 The new law legislates "" that an offence is public when it is already divulged among the people or when circumstances are such that they induce one to conclude prudently and necessarily that the fact will easily be published. The offence is notorious by notoriety of law when a competent judge in his final sentence pronounces the delinquent guilty of it, or when the delinquent by confession of guilt admits the offence either in writing or by word of mouth, whether such confession be spontaneous or the result of inquiry by the judge.*"" An offence is no- torious by notoriety of fact if it is publicly known and committed under such circumstances that no recourse to subterfuge can conceal it, and it cannot be excused by the voice of the law. This impediment will occasion more doubts than perhaps any other. Public concubinage in this connec- tion is not to be interpreted as referring to occasional extra-matrimonial intercourses. Thus, for instance, frequent visits paid to a house of ill fame would not constitute a sufficient ground to induce the impediment of public propriety even if the illicit relations should be limited to one* and the same person. The concu- binage presupposed by this law must result from a life which may be called a quasi-matrimonial cohabitation. Stress must be laid on the fact that the illicitness of "" Cod. Iur. Can., Can. 2197. «» Op. cit., Can. 1750. Impediment of Public Propriety. 277 the carnal relations is supposed to be publicly knoAvn. A man and a woman having extra-matrimonial rela- tions would not contract the impediment should they be publicly reputed as husband and wife. 377. The impediment of public propriety is com- puted like the impediment of affinity. It arises be- tween the man and the lineal blood-relatives of the woman in the first and the second degree, and vice versa. Therefore the man could marry the collateral blood-relatives (the sister, for instance) of the woman with whom he contracted an invalid marriage, or with whom he lived in public or notorious concubinage, and viee versa. The impediment would assert itself should a man intend to marry the daughter or the grand- daughter, or the mother or the grandmother of such a woman. 378. Since the impediment is of ecclesiastical origin it does not affect infidels in the absence of a similar civil impediment. The question might arise : How are we to decide the question when the man belongs under the jurisdiction of the Church and the woman is an infidel? The strict interpretation of the law would permit a conclusion militating against the spirit of the Church. Since the infidel woman is not affected di- rectly by the impediment it would seem that she may contract marriage with the baptized son of the bap- tized man with whom she entered into an invalid mar- riage, or with whom she lives in public or notorious concubinage. Such a marriage would be against the spirit of the Church, but no impediment would stand in its way unless we are to conclude that the baptized person transmits or communicates his inability to all his baptized blood-relatives affected by this law. But such a conclusion is not warranted by the wording of the canon. No one would deny that she could marry the unbaptized son of such a man. In that case neither 278 The New Church Law on Matrimony. the son nor the woman (both being infidels) would come under the jurisdiction of the Church, therefore the impediment would not bind. The same conclusion is to be draA^m when an infidel man is similarly corre- lated with the unbaptized or the baptized blood-rela- tives of the baptized woman with whom he lives in public or notorious concubinage or with whom he con- tracted an invalid marriage. The new law bars from all legitimate ecclesiastical acts all persons guilty of public concubinage and the penalty remains in force until they show a sign of true repentance and of amendment.*^^ XII. The Impediment of Spiritual Relationship. (Canon 1079.) 379. Spiritual relationship is a supernatural bond which, by virtue of ecclesiastical law, establishes a con- nection between certain persons through the reception or the administration of the sacraments of Baptism and of Confirmation. In the present discipline both these sacraments are instrumental in giving rise to spiritual relationship, but only that relationship has the force of a diriment impediment which is associated with the sacrament of Baptism. The impediment of Spiritual Relationship passed through several stages of development in the course of its history. Its cause is to be sought in the bond which springs up between the minister of the baptism and the person baptized. This spiritual paternity and son- ship, notions as old as Christianity,*'^ were gradually extended to all persons who were actively connected with the administration of the sacrament of Baptism. Such persons were the godfathers and the godmothers "'Cod. Iue. Can., Can. 2357, ^2; see this work, n. 270. "^1. Of St. Peter, V. 13; II Timothy, II, 1; Titus, I. 4; FhUemon, 1, 10 ff. Impediment of Spiritual Relationship 279 {levantes, susceptores vel tenentes) and also persons who instructed the catechumens in Christian Doctrine as a preparatory step to their reception of the sacra- ment of Baptism, and testified to the worthiness of the candidate {offerentes).*^^ In the early ages the two sacraments, namely, Baptism and Confirmation, were conferred at the same time. The fact that the same persons were acting as sponsors at both sacraments dispensed with the necessity of introducing a distinct impediment of spiritual relationship associated with the sacrament of Confirmation."* Such provision be- came necessary when by virtue of custom a period of time was permitted to elapse between the administra- tions of the two sacraments, for in many cases the sponsors chosen for baptism were different from those at confirmation. 380. In the early ages of Christianity the impedi- ment of spiritual relationship would have served no purpose, for the children were carried to the baptismal font either by their own parents or, oi^ account of propriety, by persons who were of the pame sex as the haptisandus. When this discipline was changed a praiseworthy custom gave rise to the impediment of spiritual relationship.*"' The first law prohibiting marriage between the god- father and his god-child dates from the time of Em- peror Justinian.*'" Though this civil law as such did not oblige the baptized, it nevertheless reflects the spirit of the age and leads one to believQ that even at that early period Canon law accepted sup]i aii impedi- ment and the purpose of this civil law was to aid its "' Tektullian, De hapt., c. XVIII; Dionysius As^op., Be hierarchia eccl., cap. VII, Jll; see Migne, P. G., vol. Ill, col. 5Q7 ff. "* Laurin, Arch. f. Jc. K., t. XV, p. 220 ff., 239, 253, 259 fl. "'EsMEiN, op. cit., vol. I, p. 362; Wernz, op. cit„ n. 485; Lauein, op. cit., loc. cit., p. 220; Frbisen, Geschichte des caiwftischen Eherecht.i iis zum Verfall des Glossenlitteratur, p. 508 (Paderborn, 1893). '"■ L. 26, Cod. de nupt., V, 4. 280 The New Church Law on Matrimony. enforcement."' The synod of Triillo (692) in its LIII chapter not only canonized this law of the Emperor, but extended the prohibition to marriages between the godfather and the natural mother of the baptized child. After this legislation, by degrees the impediment con- tinued to widen its scope, weaving a net of spiritual relationship around paternity, compaternity, direct "* and indirect,**" and even around fraternity.*"" But even then it failed to reach its furthest limits. It was extended to the confessor and his penitent rendering incestuous all carnal relations between them.*"' When it became customary to select several sponsors for Baptism and different sponsors for the sacrament of Confirmation a wide circle of persons became af- fected by this impediment. The Council of Eome (721), which was probably, the first to legislate on this point in the Occidental Church, drew up a law which failed to remedy this undesirable tendency. It reads : Him who enters into marriage with one related to him by the bond of commaternity, let him be anathema. The same prohibition is emphasized by other Councils held in various places and at different periods. Canons legislating on spiritual relationship as a distinct im- pediment arising through the sacrament of Confirma- tion did not appear until the eighth and the ninth cen- tury."' 381. The Gratian collection incorporated the vari- "' Benedict XIV, Be Synodo Dioecesana, lib. IX, cap. X, n. 6; G|S- PARKI, op. cit., n. 734. *•' Relationship between the sponsors and the natural parents of the child. ""Relationship between the baptized child and the husband or the wife of the sponsor. '"° Relationship between the baptized child and the natural children of the godparents. '" C. 8, 9, 10, C. XXX, q. 1. ■"^Cap. I, Synod. Gener. in reg. Franc. (752), Hepele, op. cit., vol. Til, n. 591; Cap. XV, Cone. Comp. (757). Impediment of Spiritual Relationship 281 ous decrees touching on this impediment,"' but several official decisions coming from the supreme legislative authority of the Church were necessary before the numerous doubts arising in relation to this impediment were solved. These decrees are embodied in the offi- cial decretals of Gregory IX"' and Boniface VIII."" The Council of Trent was the first to attempt to nar- row the compass of the impediment. It abrogated the spiritual relationship arising ex catechismo and through fraternity and spiritual affinity. The limits of the impediment were clearly defined, namely, it arose (1) between the minister of the sacraments of Baptism and of Confirmation and the sponsors on one side, and the recipient of the two sacraments on the other; (2) between the natural parents, whether legiti- mate or illegitimate, of the recipient of the two sacra- ments on one side and the minister and the sponsors on the other."" Several Fathers of the Vatican Council were in favor of depriving this impediment of its .diriment force, but their suggestion was disregarded. According to the present discipline both sacraments, namely. Bap- tism "' and Confirmation,*"' give birth to spiritual re- lationship, but only the relationship associated with the sacrament of Baptism has the force of annulling mar- riage.*°° It constitutes a diriment impediment between the recipient of the sacrament of Baptism on one side, and the minister of the sacrament and the godparent on the other. 382. Since it is the spiritual bond that constitutes "'C. 1, 2, 3, 4, 5, 7, C. XXX, q. 3; c. 1, 2, 3, 4, 5, 6, C. XXX, q. 4; c. 4, C. XXX, q. 1. *" C. 2, 4, 5, 6, 8, X, de cognatione spirituali, IV, 12. '"C. 1, 2, 3, de cognatione spirituali, IV, 3, in VI°. "" Sessio XXIV, Ve reform, matrim., cap. II. "' Cod. Iub. Can., Can. 768. "' Op. cit., Can. 797. '" Op. cit., Can. 1079. 282 The New Church Law on Matrimony. the source of this impediment, no impediment will arise unless such a relationship is actually begotten be- tween the recipient and the minister of the sacrament of Baptism, and between the recipient and the god- parent. The existence of such relationship presup- poses the objective validity of baptism and the compe- tence of the godparent. 383. In order that one may validly act as godparent the following conditions are required by the new law: (1) He must be baptized. He must have reached the age of discretion and must have the intention of as- suming the responsibilities attached to such an office; (2) He must not profess membership in a heretical or a schismatical sect, nor should he be excommunicated by a declaratory or condemnatory sentence, nor de- clared infamous by infamy of law, nor should he be a cleric deposed or degraded; (3) He should not be the father or the mother or the spouse of the recipient of Baptism; (4) He should be designated either by the natural parents, or by the guardians of the baptizan- dus, or, in their absence, by the minister; (5) In the act of baptism he should physically touch or hold, per- sonally or by procurator, the person to be baptized, or should receive the same immediately from the sacred font or from the hands of the minister.^"" These con- ditions are ad validitatem. Should any of them be violated, or disregarded or omitted, no spiritual rela- tionship would result from the administration of bap- tism. The law very wisely eliminates all possibility of spiritual relationship between the parents of a child' baptized by its father or mother. The relationship be- ing non-existent, the dehitum coniugale would in no way be affected by such an act. 384. It is immaterial whether the baptism is solemn or private, spiritual relationship arises in both, for "» Op. cit., Can. 765. Impediment of Spiritual Relationship 283 the spiritual bond owes its origin exclusively to spir- itual regeneration.'" A godparent should be chosen even in private baptism. Should such a baptism be administered without a godparent, his presence is re- quired when the ceremonies are supplied, in which case no spiritual relationship is contracted.'"^ When baptism is repeated conditionally, the same godparent should be selected that assisted at the tirst conditional administration of baptism. Unless this is done, no spiritual relationship results from either con- ditional administration of the sacrament.'"** A baptism whose validity is doubtful can give rise only to a doubtful impediment of marriage. 385. If the marriage is contracted without a dis- pensation ad cautelam from a doubtful impediment of spiritual relationship and subsequently the absolute validity of the baptism is established, in our estima- tion, marriage contracted with such an impediment should be regarded as invalid, unless the Church tacitly intends to dispense in all such cases, which in- tention is not intimated by any official decisions. Wernz,'"* and Gasparri "" subscribe to the contrary opinion. In this Gasparri is consistent (he applies the same principle in all similar cases throughout his work), but Wemz may be accused of inconsistency. He maintains that marriage contracted with a doubtful impediment of disparity of worship should be regarded as invalid if subsequently the invalidity of the doubt- ful baptism (which is the cause of the doubtful im- pediment) is ascertained with moral certainty.'"* It "" S. C. C, 5 mart., 1678. •""Cod. Iub. Can., Can. 762, J2; S. C. de Prop. Fide, instr. (ad Ep. Scodren.), 11 sept., 1779, n. 4. '" Cod. Iub., Can., Can. 763, §2. "» Op. cit., n. 489. =■" Op. cit., n. 737. "" Op. cit., n. 507 ; Gasparri in conformity with his principle upholds the validity of such marriage, see his work, n. 598. 284 The New Church Law on Matrimony. is hard to see how the subsequent solution of such a doubt would produce so different an effect when in both instances the doubt concerns an impediment of marriage whose objective validity depends on whether at the time the contract was made the parties in ques- tion were free or not. Furthermore, our contention is corroborated by the principle adopted by the new law. It states distinctly that the validity of a marriage con- tracted without a dispensation from a doubtful im- pediment of disparity of worship is to be upheld only till such a time as it is proved beyond all doubt that one of the parties is baptized and the other unbap- tized.''" There is nothing militating against the appli- cation of the same principle to a marriage contracted with a doubtful impediment of spiritual relationship. Such marriage should be upheld until it is proved that a relationship was actually begotten by the act of bap- tism.°°* This once established, the disqualifying force of the impediment should be permitted to take effect from the time the contract was made, which owing to the inability of the contracting parties resulted in an invalid marriage, because the impediment has a retro- active force. 386. The impediment of spiritual relationship is of ecclesiastical origin and can be contracted only by bap- tized persons. Infidels can in no way be affected by it, not even indirectly, for the contracting of spiritual relationship, as has been already stated, presupposes baptism as a conditio sine qua non. In the new legis- lation the impediment of spiritual relationship will not be multiplied. 387. The Church always required a very grave rea- son before it dispensed from the impediment of spir- »" Cod. Iur. Can., Can. 1070, §2. '»' Op. eit., Can. 1014. Impediment of Legal Relationship. 285 itual relationship arising through, paternity. '^"^ The faculties given to the Bishops on February 20, 1888, to dispense concubinarios in periculo mortis constitu- tos, did not reserve this impediment. The same ex- tensive faculty is granted to the Bishops and the priests by virtue of canons 1043 and 1044 in behalf of persons who are in danger of death and whose matters of conscience need to be adjusted, and should the case permit, their children legitimated."" XIII. The Impediment of Legal Relationship. (Canon 1080.) 388. The change introduced by the new law in this impediment dispels many doubts and dispenses us from the necessity of devoting much space to the pres- entation of its history. We advise the reader to con- sult another part of this work,"^ as well as several other authors."" Adoption is a legal act establishing relations of par- enthood and filiation recognized by law between per- sons not so related by nature. The bond or connection of persons arising from adoption constitutes legal re- lationship. Cases of adoption were not uncommon even among the Israelites "^ and among the old Ger- manic races."* But it was nowhere so strictly regu- lated by laws as among the Greeks and the Romans. Roman law did not as a rule permit adoption unless the adopter was childless and of such age as to pre- """ Gaspaeri, op. eit., n. 750 : Webnz, op. cit., n. 495. "» See this work, n. 151 S. '" See this work, n. 185 tf. '" ESMEIN, op. cit, vol. I, p. 357 ff . ; Laurin, loc. cit., t. XIX, p. 193 ff. ; Gaspabri, op. cit., n. 751 ff.; Wernz, op. cit., n. 469; De Becker, op. cit., p. 199 ff. ; Feije, op. cit., n. 428 ff. ; De Smet, op. cit., n. 319 ff. ; Santi-LiEitner, op. cit., vol. IV, tit. XII, p. 234 ff. "'Gen. XLVIII, 5; Exod. II, 10; Esther, II, 7, 15. '" Benedict XIV, De synodo dioecesana, lib. IX, cap. X, n. 3 ; HoLTZENDOBFF, Encyklop. d. Bechtswissensch., p. I, p. 259. 286 The New Church Law on Matrimony. elude reasonable expectation of any children being be- gotten by him. The maxim "adoptio imitatur natu- ram" required of the adoptive father to be at least eighteen years older than the adopted child. The words alieni iuris and sui iuris played an important role, for they determined the two species of adoption accepted by the Eoman law. Persons who were still under the patria potestas were called alieni iuris, while those who were their own masters were called sui iuris.^^^ The adoption was either solemn or simple. The solemn adoption, otherwise called adrogation, con- sisted in a legal enactment issued generally by the head of the state ^" by virtue of which an individual who was sui iuris passed into the family of the adopter with all the privileges of a legitimate and natural offspring including the right to inheritance whether the adopter died intestate or not."^ The simple adoption was a legal enactment effected by the authority of the judge or of a competent magistrate whereby relations of paternity and filiation were estab- lished between a person not yet of full age {nondum sui iuris) and the adoptive father, but in such a way that the former did not pass into the family of the latter, nor was he constituted a necessary heir, though he succeeded his adoptive father if he died intestate. The adoption was perfect {plena) when the adopted person was transferred into the family of the adopter as was generally the case in all solemn adoptions or adrogations, and also in simple adoptions when the adopter was a lineal blood-relative in the ascendant line of the adopted. In every other instance the adop- tion was imperfect or minus plena. "" L. 1, 2, D. De adopt., I, 7. "• L. 6, C, De adopt., VIII, 48. °" Inst. Ill, 10, de acquisitione per arrogationem. Impediment of Legal Relationship. 287 389. The authors are unanimous in maintaining that the impediment of legal relationship constituted a diriment impediment of marriage in the Eoman law, but it is a controverted opinion whether such an effect followed only from the perfect or also from the im- perfect adoption,"' In the old law this question was of vital consequence, for on its solution depended whether the impediment existed or not in countries in which imperfect adoption was in vogue. The Holy See was consulted about certain countries and declared the impediment non-existent in Bulgaria "° and in Tonkin while its presence was upheld for Austria, though the civil laws of that country do not invest the adoption with the force of a diriment matrimonial im- pediment."" From this it would seem that for the past discipline one should be guided by the opinion which denies to the imperfect adoption the power to induce the impediment of legal relationship. It is precisely owing to the imperfect adoption prevailing in countries above-mentioned that the Holy See did not admit the presence of the impediment. 390. The legal kinship sprang from its resemblance to natural relationship. Its purpose was to protect and safeguard the morals of the adopted as well as of those who by residing under the same roof contracted a certain propinquity which on the ground of public decency and propriety militated against their entering into marriage.^^^ The intimacy begotten by adoption became recognized by the Church as an impediment to marriage on three grounds, namely, (1) on the ground "'"Wernz, op. cit., n. 469, note 32; Gasparri, op. cit., n. 755; Bene- dict XIV, De Synodo Dioecesana, lib. IX, cap. X, n. 5; D'Annibale, op. cit., vol. I, n. 65; De Smet, op. cit., n. 320; Burtsell, in the Cath- olic Encyclopedia, art., "Adoption," (Canonical) ; Sanchez, op. cit., lib. VII, disp. LXIII, n. 16; De Angelis, h. t., n. 1. ""• S. C. S. Off., 16 apr., 1761. ™ De Becker, op. cit., p. 204; Gasparri, op. cit., n, 761 ff. •" St. Thomas, suppl. Illae, p., q. LVII,- a. 2. 288 The New Church Law on Matrimony. of paternity (in the direct line) between the adopter and the adopted as well as his descendants who were under his control at the time of the adoption; °^^ (2) on the ground of fraternity (in the transverse line) be- tween the adopted and the legitimate natural offspring {nondum sui iuris) living under the control of the adopter; '^^^ (3) on the ground of legal affinity, between the adopter's wife and the adopted, and between the wife of the adopted and the adopter/" The impedi- ment arising from the bond of paternity and of legal affinity continued even after the dissolution of the adoption. The impediment to which the tie of frater- nity gave rise ceased after the adoption was dissolved, or after the children affected by it either became of age or were emancipated, 391. Pope Nicholas (858-867) not only admits the existence of the impediment but comments upon it very favorably. His remarks were subsequently inserted in the Gratian coUection.^^^ The other proofs showing the early introduction of the impediment consist in the fact that it was recognized by such early authors as Eoland,°^° Peter Lombard,^^^ and Bernardus Papien- g^g_628 rjijjg Decretals of Gregory IX devote only nine lines to this impediment ^"^ and the Council of Trent, as well as that of the Vatican, declined to sanction the suggestions of the convened Fathers to modify its scope. 392. The present discipline legislates definitely and its tenor makes the question of perfect and imperfect =22 Benedict XIV, Be Synodo Dioecesana, loc. cit., n. 4; J$l, 10; Inst, de nupt., I, 10; L. 55, D. de ritu nupt., XXIII, 2. "^ §52, 3, 4, Inst, de nupt.; L. 3, 17, D. de ritu nupt, '^Xi. 14, D. de ritu nupt.; L. 23, D. de ritu nupt.; L. 4, §10, de grad. et affln., XXXVIII, 10 ; S. C. C, Bortana, 25 sept., 1734. "2» C. 1, C. XXX, q. 3. "" Svmma Magistri Solandi, p. 146 (Ed. Thaner.). '" Lib. IV, Sent, dist. XLII. ■^' Summa de matrimonio, p. 298. '" Cap. un. X, de cognatione legali, IV, 12. Impediment of Legal Relationship. 289 adoption entirely inconsequential. It reads: Persons who by virtue of civil law are rendered incapable of contracting marriage on account of legal relationship arising from adoption, are disqualified also by canon law from entering into a valid wedlock.'*'" Thus the Church law contains an explicit canonization of the civil law of every country.^'^ The tenor of the civil law will therefore decide not only the impedient or the diriment force of the impediment but also its scope, namely, the number of individuals who will be affected by it. 393. Though the principle is clear, its application will not be void of difficulties. In countries where the civil impediment of legal relationship is not recog- nized, the canonical impediment will be non-existent. Some uncertainties will be caused by the fact that the civil Codes are not sufficiently definite in determining the force and the scope of the civil impediment of legal relationship. The canonists of the respective coun- tries will be expected to solve such doubts and to sub- mit the result of their investigation to the Holy See for final decision. Until such conclusions are reached we can say tentatively that in the United States of North America the impediment will be unrecognized, for the civil law does not admit its existence. As regards the Code of Napoleon (art. 348), which is the official Code of Belgium and France, the impediment arising on the ground of legal fraternity in the transverse line is not confined to the adopted and the adopter's legitimate natural offspring. Its scope is extended even to the various children adopted by one and the same per- son.^'^ Other civil Codes as, for example, the Code of Germany ,'■'''' restrict the impediment to legal paternity. '™ Cod. Iub. Can., Can. 1080. =" Op. cit., Can. 1059. "" De Smet, op. cit., n. 322, not 2. •"$^1311, 1762, 1763; Hollweck, op. cit., p. 104, note 3. 290 The Neiv Church Law on Matrimony. And again in other countries the impediment arising from the direct line on the ground of legal paternity is dissolved by the dissolution of the bond of adoption,"^* while in others it remains in full force even after such dissolution. All these regulations will react on canon law which will conform to the civil law of every coun- try in all its particulars. 394. According to the foregoing principles the im- pediment of legal relationship will not be in force in those countries of Europe which are in the state of formation, having repudiated the Code of the nation to which they were formerly allied. For such coun- tries the existence or the non-existence of the impedi- ment will depend on the subsequent legislation incor- porated in their new civil Codes bearing the official sanction of the representatives of the government and promulgated as the law of the land. 395. To dispense from the impediment arising in the direct line a grave reason was always required, but even a slight cause is sufficient to justify the granting of a dispensation from this impediment as occasioned by legal affinity. In the transverse line the dispensa- tion is hardly ever asked and very seldom granted for the bond of adoption suffers an automatic severance by the fact that the children became of age or are emanci- pated. To avoid all friction between the Church and the state law in connection with future dispensations, the Church will probably demand that the parties in question should first procure a civil dispensation from the impediment of legal adoption. The civil Codes as a rule hold out the prospect of such a dispensation. The power to grant it is generally vested in the su- preme civil ruler. Should the civil authority deny it in the case of two baptized individuals, the Church strictly speaking has the right to grant it notwithstand- ■"* Webnz, op. cit,, n. 480, Impediment of Legal Relationship. 291 ing such refusal. Should there be grave reason justi- fying and demanding an ecclesiastical dispensation, re- course could be had to a marriage of conscience, if some evil is feared from the revelation of a marriage entered into under such circumstances."^ '" Cod. Iur. Can., Can. 1106 ; see this work, n. 61 ff. CHAPTER VII. Matrimonial Consent. (Canon 1081— Canon 1093.) /. Matrimonial Consent in General. 396. Consent referred to contracts in general is a deliberate act of the will which results in an agreement of two or more individuals regarding a well-defined object and including within its compass all things in- separable from the essence thereof.^ Consent is there- fore the vitalizing factor which legalizes all transac- tions. The properly manifested consent of parties juridically competent constitutes marriage. This con- sent cannot be supplied by any human power.^ Matri- monial consent is an act of the will whereby the two parties mutually transfer and accept the right over the body, which right is perpetual and exclusive and its purpose is acts in themselves suitable for the gen- eration of offspring.' When both parties are compe- tent and the proper consent is given in the sense indi- cated by the foregoing canon the individual union called marriage springs into being and constitutes the man and the woman as one principle of legitimate procreation. By declaring that consensus (when given under the ' Gaspabri, op. cit., B. 771 ; D'Annibale, vol. II, n. 4, 11. "C. un., C. XXX, q. 2; c. 14, 23-26, 31, X, de spoTisaUbus et matri- moniis, IV, 1 ; LEO XIII, deer. "Consensus mutuus," 15 f ebr., 1892 ; S. C. C, Mutinen., 19 aug., 1724; S. C. de Prop. Fide (C. P. pro Sin.- Tunkin. Occident.), 5 apr., 1785. ' Cod. Iur. Can., Can. 1081. 292 Matrimonial Consent. 293 circumstances specified above) facit matrimonium the new law settles the much-mooted question of the copula theory. One is no longer permitted to advo- cate the opinion which holds that the conjugal act is an indispensable requisite to marriage in the sense that marriage is an incomplete contract not invested with sacramental character until such an act takes place. This opinion was defended by Gratian^ and the school of Bologna in opposition to Peter Lombard '' and the school of Paris. Magister Rolandus, after- wards Alexander III, contributed to the solution of the controversy by propounding a mixed theory whereby it was admitted that copula, though it does not pertain to the essence of Christian marriage, is an integrant thereof endowing it with an accidental per- fection and with absolute indissolubility." 397. Marriage is a natural contract, hence its es- sence is to be determined on the ground of natural law. The marriage contract is vitiated whenever a circum- stance connected either with the contracting parties or with their consent militates against its essence. Since the matrimonial consent cannot be supplied by any human power ' we are to conclude that the consent must be : 1. Free and deliberate. Violence or coaction depriv- ing the contracting parties of their freedom to dissent would result in an invalid consent. In order that the contract be vitiated and rendered null and void the fear need not necessarily be absolute, relative fear suffices as long as the person in question laboring ' C. 1-51, C. XXVII, q. 2. " Lib. IV, Sent., dist. XXVII. °ESMEIN, op. Git., vol. I, p. 117 ff.; Wbrnz, op. cit., n. 36; Gasparri, op. cit., n. 770; De Smet, op. cit., n. 60. ' Sanchez agitates the question whether God by His absolute power could cause marriage to exist without the consent of the contracting parties. The conclusion is to be negative. {Op. cit., lib. II, disp., XXVI.) 294 The New Church Law on Matrimony. under its influence is coerced to feign a consent out- wardly which inwardly does not exist.* • 2. Internal, namely, actuated by the will. A feigned fictitious or an interpretative consent in the absence of matrimonial intent cannot give rise to a valid mar- riage." 3. Personal, for no power except the individual will of the contracting parties can bring about the legiti- mate mutual transfer of the dominion over their bodies. 4. Outwardly manifested or external, for a recipro- cal transfer of the bodies cannot be understood by both unless such intention is manifested by unmistak- able signs. 5. Legitimate, presupposing that the person who gives the consent is competent or capable. Against the legitimate consent militate the natural and the positive law when for certain reasons they disqualify some persons from entering into valid wedlock. 6. Absolute or, if conditional, the condition must be such that it is not incompatible with the essence and integrity of the marriage contract. 7. Simultaneous, if not physically, at least morally so. It suffices that the consent of one party be given during the virtual continuance of the other party's consent. //. Causes Militating Against Matrimonial Consent. 398. In order that the matrimonial consent may possess the characteristics specified above certain con- ditions are required on the part of the will and on the part of the intellect of the contracting parties. Causes militating against consent on the part of the intellect ' Acta Apostolieae Sedis, vol. II, p. 348. ° S. C. C, Parisien., 7 iul., 1 sept., 1883; 7 mart., 1885; Acta Sanctae Sedis, vol. XXIII, p. 14 ff.; Masilien., 1 iun., 1911; Acta Apostolieae Sedis, vol. Ill, p. 525 ff. Matrimonial Consent. 295 are: (1) Want of proper discretion; and (2) Error. Those opposing it on the part of the will are : (1) Sim- ulation; (2) Coercion or fear; (3) Condition. A few words must be said on each of these causes. A. Causes Opposing Marriage on the Part of the Intellect. 1. Want of Proper Discretion. 399. In order that matrimonial consent may be present it is required that the contracting parties be not ignorant of the fact that marriage is a permanent state betwen a man and a woman for the purpose of procreating children." This ignorance is not pre- sumed after they reached the age of puberty." Par- ties who are lacking in this minimum of the required knowledge cannot contract validly. This is a require- ment of the natural law, its scope must therefore be ex- tended to the unbaptized. Besides this required knowl- edge the baptized persons must be guided also by the ecclesiastical law prescribing a certain age. 400. The age of puberty for a male child is reached after the "completion of fourteen years and for a female child of twelve years.^^ After that age the sufficient knowledge required for matrimonial contract is pre- sumed, though the impediment of age would interfere with its validity unless the former completed his six- teenth and the latter her fourteenth year.^^ The knowl- edge required by the foregoing canon need not be so precise as to extend to all particulars or factors con- nected with the purpose of marriage. Even a confused knowledge has the force of inducing a valid consent provided its giver is aware of the permanent bond and "S. C. C, Fentimilien., 19 mail, 18 aug., 1888. " Cod. Iur. Can., Can. 1082. •' Op. cit., Can. 88, $2. '■ Op. cit., Can. 1067. 296 The New Church Law on Matrimony. is ready to embrace all the conditions marriage im- plies. Thus, for instance, the validity of the consent would not be questioned should a person express will- ing'ness to comply with the primary end of marriage without being enlightened as to the nature of the act of procreation. Should lack of sufficient knowledge be pleaded against the validity of marriage the cause of nullity would have to be proved, for the contrary is presumed if the party in question was in possession of the age of puberty at the time the contract was made. 401. Persons incapable of giving valid consent are : (1) Those laboring under dementia or monomania; (2) Those who are born deaf, dumb and blind; (3) Those who are in a state of inebriety." Even civil law disqualifies these three classes of persons from making a binding contract. Should the person men- tally deranged enjoy some lucid intervals, marriage contracted during one of them would be valid but illicit.^^ In doubt whether the marriage was contracted during luci(J intervals or in a state in which the faculty of coherent thought was wanting, the latter is to be presumed.^' Persons who are deaf, mute and blind from their nativity are generally classed among infants and for that reason are barred from marriage." It is a con- troverted point whether the same inability is to be predicated of persons born deaf and dumb. If the in- struction they had received renders them capable of discerning a formal violation of the moral law and of realizing the duties and the responsibilities attached to the marriage contract, it would seem that they could '* D'Annibale, vol. I, n. 31, and vol. II, n. 409. " Gaspaem, op. cit., n. 779. " SCHMALZGRUBER, op. cit., IV, I, n. 14 ; Sanchez, op. cit., lib. I, disp. VIII, n. 18. " Sanchez, op. cit., lib. I, disp. VIII, n. 13 ; St. Alphonsus, lib. VI, n. 303 ; D'Annibale, vol. I, n. 30. Matrimonial Consent. 297 give a valid consent. The testimony of men who ob- served the physical, mental and moral status of deaf- mutes favors the assumption that such an instruction is a possibility. Therefore, it would seem that they should not be barred from marriage as a class on the ground of natural law, but that their individual fitness should be the deciding factor. Innocent III distinctly states that the deaf and the dumb are capable of con- tracting marriage, but it is not clear whether he con- templates cases where the two classes are taken sepa- rately or a case where both deafness and muteness occur in the same individual." Deafness, muteness and blindness when viewed separately, whether they are congenital or adventitious, do not disqualify one from marriage," A person in the state of inebriety depriving him of all use of his mental faculties ^° is regarded as incap- able of giving a valid matrimonial consent." The same is to be said of individuals found in the state of stupor, of delirium or of somnambulism." 2. Error. 402. Error is a discrepancy between what is thought to be true and what is actually true. It implies not only a lack of information but also a positive ele- ment of mistaken judgment, in other words misappre- hension. Gratian '^ distinguishes various kinds of error which can be reduced to error of fact {error facti) and error of law {error iuris). Error of fact relates either to the physical person who is the second party to the contemplated contract {error substantialis), or to his " C. 23, 25, X, de sponsalibus et matrimoniis, IV, 1. "Wernz, op. cit., n. 41. =»CoD. ITO. Can., Can. 2201, §3. " Gasparri, op. cit., n. 781. " De Lugo, De Sacramentis in genere, VIII, n. 100 fE. ^ C. XXIX, q. 1 ; PETRI LOMBARDI, Sent., lib. IV, dist. XXX. 298 The New Church Law on Matrimony. qualities {error accidentalis). Error of law concerns the principal object of marriage {ius in corpus), or its essential properties {unitas, perpetuitas, indissolubili- tas).'' Error may be concomitant or antecedent. The con- comitant error has no real effect on the consent, inas- much as it would not have influenced the contracting party to desist from marriage, even if the error had been detected before the contract had been made. Not so with antecedent error, which presupposes that the consent would have been withdrawn had the error been discovered in time. 403. The new law legislating on the error of fact says : Error about the person nullifies marriage. Error regarding the quality of the person, even if it should be the cause of the contract, invalidates marriage only, (1) when the error about the quality amounts to an error about the person; (2) when a free person con- tracts marriage Avith a person whom he presumes to be free, while she is in a state of servitude strictly so called.^^ 404. Substantial error, or error about the person, whether it is antecedent or concomitant, vincible or in- vincible, nullifies marriages not only by virtue of spe- cial ecclesiastical legislation but also by virtue of natural law. Therefore the invalidating effect is not to be confined to marriages contracted by baptized per- sons but ought to be extended also to those entered into by the unbaptized. A classical example of such error is foutid in the Old Covenant where reference is made to the marriage of Jacob with Lia, whom Jacob erroneously thought to be Rachel.^' The matrimonial contract presupposes a consent given to a determined " Wernz, op. cit., n. 223 ; Gaspabri, op. cit., n. 783 ; De Smet, op. cit., n. 259; D'Annibale, vol. Ill, n. 444. " God. Iur. Can., Can. 1083. " Genesis XIX, 24. Matrimonial Consent. 299 person whom each of the contracting parties has in mind. If Charles intended to marry Agnes, but by mistake he is united to Cecilia whom he erroneously thinks to be Agnes, his consent is really given to the latter; consequently no marriage exists between him and Cecilia. Some authors maintain the result would be the same should Charles say : " I would want to marry this woman even if she were not Agnes. ' ' In that case, they say, the words "I would want to" express an inter- pretative will which de facto does not exist, and in real- ity his consent is directed toward the absent Agnes and not toward the woman who is actually present." The contrary opinion, it would seem, has a more solid basis. 405. Accidental error affecting only the quality of the person does not, as a rule, invalidate marriage, though the erring person may suffer grave injury.'* It is immaterial whether such an error is vincible or invincible, concomitant or antecedent, or whether the person is led into it without any deception or duplicity, or through imposture or fraud.^^ In the latter ease the damage may have to be repaired, if it be possible, but the contract is not rescindable. The explanation lies in the fact that the consent tends principally towards the identity of the person and not toward one of his qualities.^" A different judgment would have to be rendered if it were clear that the main object of the contract was a particular quality of a person, which character is specified as a conditio sine qua non.^^ Of this we shall treat more extensively later.^^ "St. Thomas, suppl. Illae, p., q. LI, art., land 2; Schmalzgbuber, lib. IV, tit. I, n. 439; Sanchez, lib. VII, disp. XVIII, n. 11; Gasparri, op. cit., n. 784. ^ Alphonsus, lib. VI, n. 1012 ; Scavini, op. cit., Ill, n. 842. •" D'Annibale, vol. Ill, n. 444; Sanchez, lib. VII, disp. XCII, n. 4. '"Weenz, op. cit., n. 227; Santi-Lbitnbr, lib. IV, tit. I, n. 135; S. C. C, Frisvngen., 7 et 28 aug., 1745; Bomana, 9 aug., 1817, 27 mail, 1820. »' Cod. Iur. Can., Can. 104. "See this work, n. 433 ff. 300 The New Church Law on Matrimony. Accidental error which affects the quality of the person" annuls marriage whenever it is equivalent to a substantial error, namely, when it amounts to an error about the person. Thus, for instance, should Charles wish to enter into marriage with the oldest daughter of Cecilia, his marriage would be invalid should he contract with Agnes whom he mistakenly regards as such daughter ; for his consent in this case is reserved to the daughter who is actually the oldest. Should no such limitation be placed on his intention but should his consent be given to the person present, then the contract would stand, and in case of doubt the presumption is always in favor of its validity. 406. Another instance in which accidental error annuls marriage is the case in which one erroneously believes that the person whom he is about to marry is free, while in reality she is laboring under servitude strictly so called.^' In the former discipline error as to the servile condition of a contracting party was re- garded as a diriment impediment of marriage.^* The nullifying force of that impediment was acquired by virtue of ecclesiastical, not of natural, law.^^ There- fore the marriage entered into by two infidels, unless the civil law disqualifies the slave from contracting with a free person, is valid.^° The marriage would be valid should a free person contract with another free person whom he mistakenly believes to be a slave ; or should a slave contract with another slave whom he erroneously considers to be free. Only a baptized per- son can benefit by the nullifying force of error. Should a baptized person marry an infidel of whose servile condition he is ignorant, the contract would be null and " C. XXIX, q. 1 ; e. 4, C. XXIX, q. 2 ; c. 2, 4, X, de coniugio servo- rum, IV, 9; S. C. C, Frismgen., 7 et 28 aug., 1745. "ESMEIN, op. cit., vol. I, p. 317 ff.; Feije, op. cit., n. 120. " Wbbnz, op. cit., n. 242 ; Gaspakri, op. cit., n. 639. "■ Sanchez, op. cit., lib. VII, disp. XVII, n. 9. Matrimonial Consent. 301 void. The contrary would be true if an infidel should marry a baptized person under the same condition. The Church law in contradistinction to the Roman law" always upheld the validity of a marriage be- tween a bondwoman and a free man, or between a bondman and a free woman ; provided the fact of serf- dom was known to the free party at the time the con- tract was made. The state of slavery must be inter- preted in the sense in which it was understood among the Romans or in which it prevails in our own times mostly among the untutored races. 407. The error would be deprived of its nullifying force, should the liberation from bondage occur simul- taneously with the act of marriage. The contrary would be true, should the slavery continue after the marriage, even if for only a short time. The subse- quent emancipation granted to the slave, even if it should take place before the other party becomes aware of his error, does not affect the objective in- validity of the contract. To validate such marriages the renewal of consent is necessary, though in some cases it might be advisable to have recourse to sanatio in radice. The declaration of nullity should emanate from a competent ecclesiastical tribunal. The burden of proof as regards the presence of error relative to servile condition devolves on the free person. The contract must be upheld should the bondman or the bondwoman succeed in proving that his or her condi- tion of servility was known to the other party.'' So much as regards error of fact. 408. The new Co(Je legislating on the error of law says : Simple error as regards the unity or the indis- solubility or the sacramental character of marriage, even if it should give cause for the contract, fails to ■' L. 2, C. de incestis nuptiis. "Feije, op. cit., II. 123. 302 The New Church Law on Matrimony. vitiate the matrimonial consent."' This canon rejects the opinion that persons entertaining a mistaken idea about the properties of marriage cannot enter into valid wedlock. The words "simplex error" charac- terize the misleading notions generally diffused in our times among infidels, heretics and schismatics. Such errors regard the practice of polyandry and polygyny, the rejection of the sacramental character of marriage, and the belief that certain circumstances warrant an absolute dissolution of the matrimonial bond. Such theoretical errors, the new law states, are not abso- lutely incompatible with valid matrimonial consent *" as long as the persons laboring under them have the general intention to contract real marriage as it was instituted by God, and do not exclude any of its prop- erties by a positive act of the will.^^ It is generally agreed, says Benedict XIV, that a person cannot wish a contract unless he wishes also its essence.*^ In order that a substantial constituent element of a contract may not be tacitly included, it must be positively ex- cluded. This exclusion is not presumed and it is diffi- cult to advance convincing proofs to show that it was present. 409. The knowledge of, or the belief in, the nullity of a marriage does not necessarily exclude the mar- riage consent.*" The words "consensum matrimoni- alem necessario non excludit" cannot be overempha- sized. Consent depends entirely on the frame of the mind. If the person firmly believes in the invalidity of the marriage he is about to attempt, but for the sake of endowing his invalid contract with legal sanction, "' Cod. Iur. Can., Can. 1084. "S. C. S. Off., instr. (ad. Vic. Ap. Oceaniae Central.), 18 dec, 1872; (ad Vic. Ap. laponiae Merid.), 4 febr., 1891. See tlie new Collectanea under numbers 1327, 1392, 1746. " Gasparbi, op. cit., n. 792 ; Wernz, op. cit, n. 228. "De Synodo Dioecesana, lib. XII, c. XII, n. 8. " Cod. Iur. Can., Can. 1085. Matrimonial Consent. 303 submits to the formality of a civil ceremony, his frame of mind would hardly favor the necessary matrimonial consent. Should he be mistaken, and should the sup- posed obstacle militating against the validity of his marriage have no foundation in fact, the marriage would be invalid and its invalidation would necessitate a renewal of consent. To exemplify this canon we could take the case of a baptized non-Catholic who, be- ing ignorant of the new law of the Church, believes that the impediment of disparity of worship exists be- tween him and the unbaptized party with whom he intends to contract marriage. Being influenced by this wrong belief he does not attach any value to his matri- monial consent, nor does he give it, but goes through the civil ceremony merely to comply with the require- ments of civil law. Though the stated impediment according to the new law would not exist in this case, the marriage would be invalid, for the true consent was wanting. But, on the other hand, if he intended to give the matrimonial consent in spite of his false notion as to the presence of such an impediment, his wrong con- viction would not affect the contemplated marriage, which would be objectively valid, for the proper consent was given and the supposed impediment was absent.''* B. Causes Militating Against Matrimonial Consent on the Part of the Will. 1. Simulation. 410. The internal consent of the will is always pre- sumed to correspond with the words spoken or the signs exhibited at the celebration of marriage. But, should one of the contracting parties, or both, by a positive act of the will, exclude either the marriage "S. C. de Prop. Fide, instr. (ad Vic. Ap. Constantinop.), 1 Oct., 1785; (C. P. Yaffnae), 23 aug., 1852, ad 7. 304 The New Church Law on Matrimony. itself or all right to conjugal act, or any essential prop- erty of marriage, the contract would be invalid.^^ It has already been stated that matrimonial consent must be internal, for without it no valid marriage can be conceived. To inform the other contracting party of such internal consent, the necessity of its external manifestation is a foregone conclusion. The new law insists that this be done by word of mouth, nor can any other mode be adopted if the parties enjoy the gift of speech." Since in a matter of so grave importance as marriage serious reflection is taken for granted, the recognized standard adopted by all nations gauges the sentiments of the inward man by the words or signs outwardly expressed.*'' If the two are in conformity the consent is full; if they differ, it is fictitious, or feigned. In this last case the party would be guilty of simulation, which consists in an outward display of consent inwardly not existing. 411. Simulation may arise in three different ways : (1) "Want of internal consent to contract;** (2) Inten- tion to contract but not to oblige oneself; (3) Intention to contract and to oblige oneself, but not to fulfill the assumed obligation. A contract en.tered into with a want of intention is vitiated at its very base, consequently its invalidity must be apparent to all. In the second instance one intends to contract marriage but declines to transfer the right of ownership over his body to the other party, or to accept the same right over the body of the prospective consort, or positively excludes the per- petual or exclusive character of that right. In this " Cod. Itjr. Can., Can. 1086. " Op. cit., Can. 1088, §2. "8. C. C, Avenionen., 23 inn., 1907; S. C. de Prop. Fide, instr. (ad Vic. Ap. Constantinop.), 1 Oct., 1785. «S. C. C, Mutinen., 19 aug., 1724; 9 iun., 1725; Parisien., 31 ian., 1891. Matrimonial Consent. 305 case the two acts of the will are exclusive of each other, for one wants the contract while the other excludes its essence. Should one be willing to assume the obligation, as in the third supposition, but be unwilling to fulfill it, he would sin gravely, but the contract would stand." 412. These principles taken by themselves are suf- ficiently clear, but their application to concrete casps will not be void of insurmountable difficulties. In order that simulation, as expressed in the foregoing cases, may be invested with an invalidating force one must exclude the marriage itself or all right to the conjugal act "by a positive act of the will." The so- lution of all future pleadings for the nullity of mar- riages on the score of simulation will therefore hinge on these words of the new law. The contract would be invalid should one positivo voluntatis actu exclude one of the essential properties of marriage, such as its unity, indissolubility or sacramental character. This positive act of the will would practically have to amount to a conditio sine qua non or to a conditio in pactum deducta.^" 413. Though simulation is very difficult to prove, its presence was discovered in several cases in which the Sacred Congregation decided in favor of the nullity of marriage." In such trials the sworn testi- mony of the party supposedly guilty of simulation has only a slight juridical value. All sources calculated to shed light on, or to account for, such a frame of mind must be unearthed and consulted. An important role should be assigned to conjectures and to circum- stances antecedent, concomitant, and subsequent to " Gasparbi, op. cit., n. 803. ™ O'DoNNELL, in the Irish Ecclesiastical Record, art., Matrimonial con- sent in the New Code, Oct. 18, 1918, p. 286. "S. C. C, Parisien., 7 mart., 1885, in the Acta Sanctae Sedis, vol. XVIII, p. 14; Massilien., 1 iun., 1911, in the Acta Apostolioae Sedis, vol. Ill, p. 525. 306 The New Church Law on Matrimony. marriage.'^ It is immaterial on which of the three grounds the invalidity of the marriage is contested (whether it be the exclusion of the marriage itself, or one of its essential properties, or of all right to con- jugal act), it must be proved that the alleged reason did not result from a mere theoretical error, nor from aij interpretative but a "positive act of the will." Failure to produce sufficient evidence to that effect would cause a verdict upholding the validity of mar- riage. 414. The application of the foregoing principles may cause various complications, not the least serious of which would be a conflict between the internal and the external forum. The nullity of the marriage may be unquestioned on the ground of the evidence pre- sented to the internal forum, but the same evidence would prove inadequate for the external forum. To adjust the friction thus arising, practically the only remedy would be the validation of marriage, if the party originally guilty of simulation is willing to give the proper consent. Should he be unwilling to do so, or should he render the case still more complicated by contracting another marriage, the internal forum would be forced to admit the validity of his act (if the proper form was used), while the external forum would spurn it. The difficulty thus created would not be solved satisfactorily until enough evidence should be advanced to the external forum to prove the in- validity of the first marriage, or until the other party of the first contract should die. In this latter case the adjustment would be automatic. 2. Coercion and Fear. 415. The new Code legislates that marriage is in- »'' Sanchez, op. cit., lib. II, disp. XLV, u. 1 ff.; Gasparbi, op. cit.. Matrimonial Consent. 307 valid when it is contracted under the influence of grave violence or fear extrinsically and unjustly caused, from which, in order to free oneself, the only alternative left is to select marriage. No other fear, even if it should give cause for the contract, brings with it the nullity of marriage/^ The terms coercion and fear are correlative, one applies to the external active agent (causing the vio- lence), the other to the passive agent (suffering from violence)." 416. Violence in this connection is to be taken morally, in the sense that some external agent threatens some present or future physical or moral evil in order to extort consent.'^^ A consent given under such circumstances is not considered altogether in- voluntary, but only secundiim quid, inasmuch as the liberty of action is more or less interfered with. There- fore, we are not concerned here with an absolute or physical coercion which precludes all possibility of a human act, but with a conditional or moral violence with which the internal consent ratifying the external act is not essentially incompatible, though the liberty of action is impaired in a greater or less degree. Fear may be: 1. Extrinsic or intrinsic according as it originates from an external agent (as a man, or a shipwreck), or from an internal cause (as sickness). 2. Justly or unjustly caused, according as the agent against whom violence is employed is guilty or inno- cent. 3. Serious or trifling, according as it is liable to per- turb even a steadfast man or only a man of weak will. 417. Special mention must be made of reverential •'Cod. Iur. Can., Can. 1087. " SCHMALZGBiJBER, op, cH., lib. IV, tit. I, ii. 384. " L. 1, 2, D. quod metus causa. 308 The New Church Law on Matrimony. fear which exists between the' superior and his sub- ject. It has its source in the desire not to offend one's parents or superiors, in order to avoid incurring their indignation, wrath or displeasure. Mere reverential fear has not the force of invalidating marriage; it must be accompanied by, or based on, the fear of some impending danger or damage, as threats, blows, im- portunate, persistent entreaties, and the like. In the former discipline violence and fear constituted a mat- rimonial impediment in the strict sense of the term. The new law has very properly discontinued to class them among the impediments and treats them as con- ditions influencing consent. The earliest resemblance to this impediment is found in the penal laws of the Church enacted against persons guilty of the crime of abduction.^" The Roman law rendered rescindable all matrimonial contracts entered into under the influence of fear and violence.^' The fact that the disciplinary measures of the Church were sufficiently safeguarded by the Eoman law relieved the Church from the neces- sity of legislating specifically on this point in the early ages. It was soon discovered, however, that the pro- tection afforded by the Roman law was inadequate, for the doctrine of the indissolubility of the marriage tie militated against the rescindability of the contract. It was therefore necessary to declare invalid on the ground of Church law or of natural law a marriage entered into under such circumstances." 418. Violence and fear were endowed with the force of annulling marriage even before the time of Gratiah. This is evident from the epistle of Urban 11.°' The scope of the impediment was more clearly deter- ••Can. LXVII, Apostol. ; Qaii. XXVII, Condi. Chalcedon. (451). " L. 22, B. de ritu nupt., XXIII, 1 ; L. 14, C. de nupt., V, 4. »• C. 22, C. XXII, q. 4. " C. 1, C. XXXI, q. 2 ; Wernz, op. cit., n. 262 ; De Beckek, op. cit., p. 62. Matrimonial Consent. 309 mined, and its nature more specitically defined by Alexander III (1159-1181).'"' The Council of Trent sanctions a species of this impediment when it decrees that no valid marriage can subsist between the abduc- tor and the abducted until the latter is restored to a safe place not under the control of the former." In addition the same Council anathematizes those feudal lords and civil magistrates who would presume to in- terfere with the liberty of their subjects, preventing them from contracting marriage freely."^ 419. The new Code retains the former discipline, and while it clears several controverted points, it fails to settle the question whether the invalidating force of fear is to be attributed to natural or merely to ecclesiastical law. Both sides have their prominent adherents. Those who advocate the former opinion base their arguments on the grave duties and serious responsibilities attached to such a contract, as well as on the numerous evils which would inevitably result from unions entered into without free will."^ The sec- ond opinion, which seems more likely, is based on the ground that a person under the influence of fear and violence is not placed in a position which precludes all possibility of giving a consent sufficient for other con- tracts, nor is there any particular reason why the matrimonial contract should be made an exception."* It is admitted by all that violence which precludes all possibility of a free human act vitiates the given con- sent on the ground of natural law. °° C. 15, X, de sponsalibus et matrimonii, IV, 1. " Sesaio XXIV, De reformatione rtwtrimonii, cap. VI. "' Loc. cit., cap. IX and also can. IX. " Wernz, op. cit., n. 267 ; Reifpenstdl, op. cit., lib. I, h. t., n. 47 ; St. Thomas, Suppl. Illae, p., q. XL VII, a. 3; St. Alphonsus, op. cit., lib. VI, n. 1054. " Sanchez, op. cit., lib IV, disp. XIV, n. 2 ; Gaspakri, op. cit., n. 811 ; SCHMALZGRUBER, op. cit., lib. IV, I, n. 406; Santi-Leitner, vol. IV, tit. I, II. 148 ; Feije, op. cit., n. 138 ff. 310 The New Church Laiv on Matrimony. 420. The new law states that marriage is invalid when contracted under the influence of a grave fear or violence unjustly caused by an external agent from which to liberate oneself one must consent to marriage. This canon implies four conditions which need a fur- ther elucidation. I. The fear, in order that it may possess the effect indicated above, must be grave, namely, such as would affect even a steadfast man, or such as cannot easily be overcome."" It is immaterial whether the fear is absolutely or relatively grave. Though the external forum considers the objective gravity of the cause be- getting fear, it does not disregard altogether the sub- jective state or disposition of the passive agent. The cardinal point on which the whole question hinges is the determination of the fa^ct that the cause inspiring fear under the given circumstances was instrumental in extorting the consent of an individual who other- wise would have dissented. Therefore, if the threats are offered by one who is in a position to carry them out, or if they cannot be avoided, the fear would have a foundation."" Fear can be present even if the evil feared is directed against the parents or near kin of the contracting party. "^ 421. Keverential fear, such as described above, may, in exceptional cases and accidentally, constitute a fear invalidating marriage, namely, when one finds in it the element of extreme sensitiveness on the part of the passive agent and of extreme rigor on the part of the active agent. The fear of serious indignation of one's parents or lawful superiors, especially if com- "' C. 15, 28, X, Ae sponsalibus et matrimoniis, TV\ 1 ; S. C. de Prop. Fide, 20 iun., 1883, in the new Collectanea, 1587, 536. "Acta Apostolicae Sedis, vol. IV, p. 505; Causa Tarvicin., 11 mart., 1912. " De Smet, op. cit., n. 266 ; Teije, op. cit., n. 132. Matrimonial Consent. 311 bined with the fear of blows or other grave conse- quences, is generally estimated as sufficient to invali- date the prospective contract-^* 422. II. The fear must be unjust. This element of fear presupposes an extrinsic and free agent. Not all the authors are in accord in determining when the fear is just. There are three things that ought to be taken into consideration, namely, (a) whether the person subjected to fear is bound to choose between marriage or some other obligation; (b) whether the active agent, be he a public or private person, has the right to exact marriage; (c) whether he has right to threaten and is likely to carry out his threats. Should the answer to these three questions be negative, the fear would be unjust. Should an individual be bound in conscience to marry for the sake of his honor, and should the per- son threatening him with fear have the right to insist on marriage, the fear would be just, provided an alter- native between marriage or denunciation before the judge, or between marriage and dowry, were offered to the guilty party."" The fear would be unjust if to the passive agent were given the choice between mar- riage and death." 423. III. The fear must be inflicted by an extrinsic free agent. It does not matter whether the agent is the other contracting party or a third party espousing his cause. Fear of disease, of eternal punishment, or of death is regarded as proceeding from an intrinsic "' GrASPARRi, op. cU., n. 816 ; Webnz, op. cit., n. 264 ; Sanchez, op. cit., lib. IV, disp. XIV, n. 17; S. C. C, Vesprimien., 2 iun., 1911, in the Ada Apostolicae Sedis, vol. IV, p. 108 fE.; Parisien, 1910, loc. cit., vol. II, p. 348 ff.; Lugdunen.. 28 iun., 1912, loc. cit., vol. IV, p. 646 ff.; TunUnen., 7 iul., 1911, loc. cit., vol. Ill, p. 661 ff. "American Ecclesiastical Review, 1913, p. 181 fF. ; Feije, op. cit., 11. 133. '»S. C. C, rigilien., 13 iul., 27 sept., 1725; De Becker, op. cit., p. 64; Gasparri, op. cit., n. 820; Wernz, op. cit., n. 265. 312 The New Church Law on Matrimony. necessary cause, consequently it has no power of in- validating the contract." 424. IV. The fear explained above, in order to have the force attributed to it, must be correlated to marriage. It is not necessary that the active agent demand marriage as a conditio sine qua non. It suf- fices that the passive agent should have no avenue of escape from the threatened evil except the choice of marriage. This opinion of some authors is formally adopted by the new Code.'^ 425. In the former discipline the right to impugn the validity of a marriage contracted under the im- pulse of fear or violence belonged to the passive agent exclusively." The new law, by virtue of canon 1971, authorizes also the other consort to challenge the valid- ity of his wedlock provided he was not instrumental in causing the fear or violence to which his marriage owes its nullity. The party whose consent was extorted by so illegal a means should avail himself of the first op- portunity, when not impeded in his freedom, of action, to place before the proper ecclesiastical tribunal the grounds on which he challenges the validity of his wed- lock. Should he delay too long with such a step, and continue to cohabit in matrimonial relations with the other party, he would run the risk of forfeiting this right according to the tenor of the former discipline." 426. The solution of the controversy whether fear interferes with the validity of the matrimonial contract on the ground of natural or of merely ecclesiastical " Sanchez, op. cit., lib. IV, disp. XII, n. 4 ; Eeiffenstul, I, XL, n. 26; St. AlphonSus, op. cit., lib. VI, n. 1049; Gaspabri, op. cit., n. 819. " ScHMALZGRTJBER, op. cit., lib. IV, n. 398 ; De Lugo, De iustitia et iure, XXII, n. 175 fE. ; see also Gasparri, op. cit., n. 821; De Becker, op. cit., p. 64; Feije, op. cit., n. 134. " SCHMALZGRUBER, op. cit., loc. cit., tit. I, n. 429 ; ; Webnz, op. cit., n. 269; De Smet, op. cit., n. 268; Feije, op. cit., n. 143. "S. C. de prop. Fide, instr., 20 iun., 1883, n. 36, in the new Col- lectanea, n. 1587 ; c. 4, X, qui matrimonium aocusare possunt, vel contra illud testificari, IV, 18 ; c. 21, X, de sponsalibus et matrimoniis, IV, 1. Matrimonial Consent. 313 law would decide the objective validity or invalidity of marriages entered into by infidels, under such im- pulse. Since the new law fails to commit itself in either way we are free to pronounce in favor of the validity of such marriages in countries in which no civil diriment impediment of fear is enforced. Should the validity of a marriage contracted between a bap- tized person and an infidel be questioned on the grotmd of grave fear, we are to consider whether the passive agent was baptized or unbaptized. In the first instance the marriage would be valid; the contrary would be true in the second instance. 427. The Church does not supply, by way of dis- pensation, the consent either withdrawn or suspended or not freely given. The fact that she never dispensed from the impediment of fear and violence is to be at- tributed partly to the doubt occasioned by the contro- versy whether the impediment is of natural or of ecclesiastical law, and partly to her desire to safeguard the liberty required by a matrimonial contract and the right of the person whose consent was extorted in so illegitimate a way. 428. It must be noted that the marriage is not in- validated unless the fear continues to the very mo- ment of its celebration." If this fact is proved the Church law invalidates the marriage even though the consent was actually given, provided the party chose marriage because it was the only expedient whereby he could disentangle himself from a serious difficulty.'" Emphasis should be laid in this connection on the fact that the fear must be uniustly caused by an extrinsic agent. In some parts of the United States of North America there is a civil law in force which imposes the alternative of imprisonment or marriage on a man who " Gaspabri, op. cit., n. 807. '" Lehmkuhl, Theologia Moralis, vol. II, n. 738. 314 The Neiv Church Law on Matrimony. acquired carnal knowledge of a woman either against her will or by seducing her with the prospect of wed- lock. Should the woman's consent to marriage be ob- tained under those circumstances, the contract would be absolutely valid even if the man's consent was the result of fear and violence such as already described for it would be justly caused." 429. The proper way to validate marriages which are invalid on the ground of fear and violence is by public renewal of consent, if the fear is a public fact; otherwise the renewal should take place secretly. Sometimes sanatio in radice is more feasible, provided the consent of both parties is present, of one by con- tinuance and of the other by private renewal. 3. Condition. 430. Condition is a circumstance attached to an act, on which the validity of the act, as well as the consent, depends for an indefinite time." The two general cate- gories of condition are: Voiding and suspensive con- dition. In a contract entered into with a voiding condition the party is absolved from all assumed obli- gation as soon as the condition is verified. The con- tract made with a suspensive condition ^does not im- pose any obligation nor does it take effect until the actual fulfillment of the condition. The individuality of the marriage contract, or, more properly its char- acter of indissolubility, is incompatible with a voiding condition. 431. The several classes of condition are: 1. Past, present, and future, according as the cir- cumstance determining the validity of the act and the obligation following therefrom is past, present or future. A past or present condition is a condition " Gasparm, op. cit., n. 820. " D'Annibale, vol. I, n. 41 ; Gaspabbi, op. cit, u. 47. Matrimonial Consent. ' 315 improperly so called, or only a relative condition. It has no influence on the contract objectively but only subjectively in so far as the parties are ignorant of certain qualities or circumstances which actually exist. Conditional contract, therefore, in the strict sense is one whose validity depends on some future event which is in the realm of the contingent but has not as yet taken place. 2. Possible or impossible. The first embraces a cir- cumstance which in the natural order of things either already exists or is contingent. The impossible condi- tion is one whose realization would require the inter- vention of divine power. The possible condition is sub- divided into necessary and contingent condition. These terms are self-explanatory. The necessary con- dition whose verification is inevitable belongs to the same class as conditio de presenti or de futuro.''^ 3. Honest and immoral. Honest condition is one which does not militate against the natural or divine, positive or human law. Immoral condition is sub- versive of morality and good order. 4. Eepugnant and non-repugnant to the substance of the contract. Three factors, namely, the good of the offspring {honitm prolis), the good of the faith {bonum fidei), the good of the sacrament (bonum sacramenti) are intimately related to the essence of the matrimonial contract. An express condition directed against any of these, as, for instance, ' ' I will marry you if you will avoid or destroy all offspring, or if you will practice adultery for the sake of lucre, or until I find another person who is richer or who will appeal to me more ' ' would render the contract null and void ab initio.^" 432. In conformity with general principles condi- "Werktz, op. cit., n. 293; Gasparri, op. eit., n, 844. '" Santi-Leitner, lib. IV, tit. V, n. 6; Gasparbi, op. cit., n. 859 ff. ; c. 7, X, de conditionibus appositis in desponsatione vel in aliis con- tractibus, IV, 5. 316 ■ The New Church Law on Matrimony. tional marriages were tolerated among the Eomans, though an express text giving them positive approba- tion is wanting in the ancient Eoman law." The Gra- tian collection, on the ground of a decree drawn by the African Council, does not attribute any value to a con- dition under which marriage is contracted.*^ Contrary to this doctrine is the opinion incorporated in the Decretals of Gregory IX, attributed to Alexander III *^ and to Urban III,*'' in which a condition is in- vested with unmistakable legitimacy and value, though the subsequent consummation of marriage, should it take, place before the verification of the condition, is interpretatively looked upon as a relinquishment of the proposed condition.*^ St. Thomas *" and St. Bonaven- ture " gave a fairly precise exposition of the doctrine relative to conditional marriage contracts. The Covm- cil of Trent did not venture to introduce a change in the discipline theretofore accepted, nor was any other legislative measure enacted by the Church on this point until the new legislation recast the former law and gave it a more precise expression. The new law reads: A condition attached (to a matrimonial con- tract) and not revoked: (1) Is to be regarded as non- existent if it concerns the future, whether it is neces- sary or impossible or immoral, but is not against the substance of marriage; (2) Should it be based on the future and militate against the substance of marriage, it would render the contract null and void; (3) Should it be directed to the future, involving something that is honest, it would suspend the validity of the mar- " Wernz, op. cit, n. 294, note 7 ; Feeisen, op. eit., p. 247 £f. «C. 7, 8, C. XXVII, q. 2. " C. 3, 4, X, de conditiombus appositis in desponsatione, vel in aliis contractibus, IV, 5. " C. 4, X, tit. cit., IV, 5. " Innocent III, c. 6, X, tit. cit., IV, 5. «■ Suppl. Illae, p., q. XL VII, a. 5. " Comment, in lib. IV, Sent., dist. XXVIII, q. 3. Matrimonial Consent. 317 riage; (4) Should it concern the past or the present the marriage would be valid or invalid according as the thing on which the condition is based exists or does not exist. These four propositions containing the doctrine re- garding "condition" in a nutshell, will be explained individually in the pages that follow. 433. I. Should one say: "I will marry you pro- vided the sun will rise to-morrow," the condition would be vitiated by the fact that it is based on a future event whose occurrence in the natural order of things cannot be prevented {conditio de eventu futuro necessario). Such a condition would not suspend the validity of the marriage.*' The same is to be said of an impossible condition as, for instance, "I will marry you if you will touch the heavens with your finger. ' ' '" Should the future concern something immoral but not repugnant to the substance of marriage the condition would be void of force."" Such condition would be : "I will marry you if you will murder your brother. ' ' The reason why such conditions are not permitted to affect marriage is that it is generally taken for granted that, they are not meant seriously. This supposition, how- ever, is to be accepted only by a presumption of law (not praesumptione iuris et de iure), as admitting a proof to the contrary. If therefore in certain instances it can be proved that such conditions were actually suspensive of consent, or that they were meant as con- ditiones sine quibus non the objective validity of the marriage would depend on their verification. Under such circumstances an impossible condition would re- sult in an invalid contract. A necessary condition would beget a contract valid from the very beginning. " Sanchez, op. cit., lib. V, disp. II, n. 3 ; Gaspabbi, op. cit., n. 843 ; De Lugo, De iitstitia et iure, disp. XXII, n. 336 ; Webnz, op. cit., n. 301. '"C. 7, X, tit. cit., IV, 5; Weenz, op. cit., n. 300. '" U. 8, X, dc pactis, I, 35. 318 The New Church Law on Matrimony. Should the condition be immoral, the validity of the marriage would be suspended, without any obligation on the part of the other party to contribute his efforts toward aiding the fulfillment of such a condition. What is more, he must positively abstain from lending his aid, for such an act would involve him in sinfulness. Should the immoral condition be fulfilled, the contract would become valid automatically, provided in the meantime the consent of the conditioning party has not been revoked.^^ It is easy to see how difficult it would be to advance convincing proofs in the external forum showing that any of these three species of condition was actually in- tended to suspend one's consent. Should the doubt remain after a careful inquiry the condition is to be treated as non-existent. In the internal forum the declaration of the individual constitutes all the evi- dence on which the question would have to be de- cided. 434. II. If the contract is conditioned on the future contrary to the substance of marriage, it is null and void. The nullity in such a case results by virtue of natural law, for nothing can exist when deprived of its essence. To the substance of the matrimonial contract belong the marital right of each contracting party over the body of the other, the essential properties of mar- riage (unity, indissolubility and sacramental dignity), the good of the offspring and the good of the faith. Accordingly, the marriage would be invalid if it should be entered into without transferring the right of own- ership over the body to the other consort for the sake of procreating offspring, or should a condition be di- rected against having any children, or should a limit be placed on their number in the sense that after a "'De Lugo, op. cit., loc. cit., n. 340; BBtprin^sTUL, h. t., n. 42; Gas- PARRi, op. cit., n. 853; Sanchez, lib. V, disp. Ill, n. 15. Matrimonial Consent. 319 specified number has been reached the iits in corpus will be revoked."^ 435. Should the right to the body be transferred, but by mutual understanding a restraint placed on its use, such a pre-matrimonial agreement, tending to cul- tivate chastity, would not annul the marriage contract, for the transfer of the right and its actual use are two distinct things, the former pertaining to the essence of marriage, but not so the latter. 436. Since the procreation of offspring is the pri- mary end of marriage by virtue of natural law, any condition interfering with that end would invalidate the contract, whether it be a demand to renounce the ius in corpus, or to resort to preventives making the attainment of the primary end impossible, as for in- stance, the practice of onanism, the procuring of abor- tion, etc. The same is to be said of a condition involv- ing the positive exclusion of the reception of the sacra- ment. To entertain a hope of absolute separation (namely, the dissolution of the matrimonial bond quoad vinculum) for any causes, or to reserve the right to have relations with others besides the legitimate wife, would also invalidate the contract, provided these con- ditions were not merely interpretative but actual ac- cessories {cvnditiones in pactum deductae) placed in the contract by one or both of the contracting parties.^^ Marriages contracted outside the Catholic Church, though they are generally entered into Avith this theo- retical error of seeking an absolute dissolution of the matrimonial bond in case of -adultery, are valid if the condition is in mente tantum; the contrary is true should it be in pactum deducta.^^ '" C. 7, X, de conditionibus appositis in desponsatione, vel aXiis con- traetibus, IV, 5 ; Gasparri, op. cit., n. 856 ; Santi-Leitner, lib. IV, tit. V, n. 19. " Benedictus XIV, De Synodo' Dioecesana, lib. XIII, cap. XXII, n. 9 ff. " Santi-Lbitner, lib. IV, tit. V, u. 24. 320 The New Church Law on Matrimony. 437. If the condition concerns a future event and something that is honest, the validity of the marriage is suspended. Such a condition would be : " If my father will consent." In this case the ascertainment of the father's consent or dissent will decide the objective validity of the marriage thus contracted."^ Should he decline to consent, no marriage would exist between the two parties. The question might arise whether contracts of this nature, entered into under similar conditions, as, for instance, "I will marry you provided my dying mother will be spared to life, ' ' become ipso facto validated by the realization of the condition, or whether a renewal of consent is necessary. Theologians espouse both sides of the question. St. Thomas with the majority of canonists maintains '^ that such a marriage is valid as soon as the condition is verified.^' 438. This teaching was confirmed by the decision of the Sacred Congregation of the Council. It bases its decrees on the theory that in such conditional mar- riages the presence of the pastor and of the witnesses, as well as the consent, virtually perseveres (unless the consent be expressly revoked) up to the time the con- dition is fulfilled,"* Hence the renewal of consent can be dispensed with, unless, as some authors maintain, the marriage was entered into under the condition ' ' If the Holy See will dispense. " "" In that case we uphold the opinion that the consent must be renewed at the time the parties are benefited by the dispensation. The prospective consorts under those circumstances were rendered incapable of giving the proper consent and " C. 5, X, d,e oonditionibus appositis in desponsatione, vel in aliis con- tractibus, IV, 5. =" Suppl. Illae, p., q. XLiVII, a. 5, e. " Fagnanus, Commentarvum, ad c. 5, X, de oonditionibus, etc., n. 4 ff. " Santi-Lbitnbe, lib. IV, tit. V, n. 12. "Fbije, op. cit., n. 647; Wbknz, op. cit., n. 297. Matrimonial Consent. 321 of placing the condition de futuro by the fact that they were laboring under an impediment."" 439. A conditional marriage contracted with an- other person while the condition of the first marriage was pending, would be valid, provided no undispensed impediment interfered, for such an act would indicate an explicit recession from the conditional consent previously given. Should also the second marriage be conditional then that marriage would be valid whose condition is verified first, provided the consent given to that particular marriage was not expressly revoked in the meantime. Should the realization of the condi- tions specified in two conditional marriages be simul- taneous, neither of them would be valid, unless suf- ficient evidence can be advanced in the external forum to prove that the party in question revoked his or her consent to the first conditional marriage before the ful- fillment of the specified condition.'"^ A free copula intervening by mutual agreement between parties bound by a conditional contract, should be interpreted, praesumptione iuris, as implying a recession from the placed eondition.^"^ 440. In all conditional contracts it is tacitly under- stood that should the consent be withdrawn before the condition is actually fulfilled (an act not entirely void of sinfulness if unexcused by a just cause) its subse- quent fulfillment would fail to validate such a contract. If the fact of conditional marriage is public, the ex- ternal forum may demand convincing proofs as to the actual fulfillment or non-fulfillment of the proposed condition. The parties are not free to desist from the conditional marriage until the occurrence of the event ""' De Lugo, De Saeramentis, in genere, VIII, n. 98. "' Sanchez, loc. cit., disp. VIII, n. 12 ; Gasparri, op. eit., n. 845 ; Wernz, op. cit., n. 298. ""Wernz, loc. cit., Fagnanus, op. cit., loc. cit., n. 21; Gaspabri, op. cit., n. 847. 322 The New Church Law on Matrimony. calculated to decide the validity or the invalidity of the contract. Should they disregard this law their action would be valid but sinful. 441. The canonists raise the question: "When do the parties to a conditional marriage contract receive the sacrament of matrimony?" The conferring of the sacrament, it is generally answered, begins at the time when the parties manifest their consent, and its ad- ministration is completed after the consent takes full effect, which, in conditional marriages, does not happen until the condition is verified. 442. IV. The foregoing principles will guide the reader in those conditional contracts which are entered into cum conditione de praeterito or de presenti. They are to be declared valid or invalid according as the specified condition actually exists or does not exist. Such conditions would be : "I will marry you if your father was a nobleman " ; or, " If your mother is dead" ; or, "If your dowry is of a certain specified sum," etc. In default of the verification of any of the foregoing specified conditions, when they are in pactum, deductae as conditiones sine.quibus non, the contract would not stand. III. Manifestation of Consent. 443. This subject has already received partial treatment in another part of the book."^ The new Code legislates that the contracting of a valid mar- riage necessitates the presence of the parties either in person or by proxy. The parties should express their consent by word of mouth, nor are they permitted to resort to equivalent signs when endowed with the faculty of speech.'"* "» See this work, u. 22 ff. ■" Cod. Idr. Can., Can. 1088. Matrimonial Consent. 323 The sense of this canon needs no commentary. By implication it is probably intended to abolish the con- tracting of marriages by letter. Such abolition could be effected only by virtue of a special ecclesiastical law, for natural law does not militate against such marriages. Therefore, marriages entered into by let- ter, provided the contracting parties are not bound by the Catholic form of marriage, are valid. Though the contacting parties are forbidden to make use of signs expressive of matrimonial consent when they enjoy the gift of speech, such signs, though gravely sinful, would nevertheless result in a valid marriage, pro- vided they are unmistakably translated by the other party as conveying a matrimonial intent.^"' 444. In regard to marriages contracted by proxy or by interpreter the new law introduces several sub- stantial innovations, and casts the ancient discipline in unequivocal words. It states that the diocesan statutes on this point must be observed and that the procurator, in order to contract the contemplated marriage validlj^ must have a special mandate to contract with a speci- fied person. This mandate should be signed by the authorizer and by the parish priest, or by the Ordinary of the place in which the mandate is issued, or by a priest delegated by either, or by at least two witnesses. Should the mandans be unable to write, the document must take cognizance of that fact and an additional witness should sign it to that effect, otherwise the man- date is without force. If the principal revoked the commission or became demented before the time when the proxy contracted marriage in his name, the con- tract was invalid, though neither the procurator nor the other contracting party was aware of the revoca- tion or the dementia. In order that the marriage may "' C. 25, X, (7c sponsalibus et matrimoniis, IV, 1. 324 The New Church Law on Matrimony. be valid the procurator must in person perform the service committed to his care."' 445. The ancient discipline of the Church relative to the rights and duties of the procurator finds a thor- ough exposition in the Decretals of Boniface VIII.^" The foregoing canon introduces several important changes. These changes have already been explained under number 22 and following. As a supplement we might add that the mandans need not be apprised of the day and the hour in which the proxy will interview the intended spouse. The validity of the marriage would not be suspended should the contract be made while the mandans is in the state of insobriety or of sleep. Nothing but his insanity would have such an effect."* The requirements specified in the foregoing canon are so important that failure to comply with them would result in an invalid contract. The same is to be said should the proxy disregard the fulfillment of a certain condition which the mandans specified as a conditio sine qua non.^"^ 446. Marriage may be contracted also through an interpreter."" Some authors denied that such mar- riages could be valid, though the Church has acted on the contrary principle.^" An interpreter will become more of a necessity by virtue of the fact that the new law insists on-the manifestation of the consent by word of mouth. A graver cause is required for a marriage by proxy than for one through an interpreter. As long as the interpreter is reliable and the parties are "' Cod. Iur. Can., Can. 1089. "" C. 1-9, de procuratoribus, in VI°. '°' This opinion must be accepted against that of Sanchez. Consult his work, lib. II, disp. XI, n. 12. '" Gaspakri, op. cit., n. 838. "Tod. Idr. Can.. Can. 1090. "' Benedictus XIV, De Synodo Dioecesana, lib. XIII, cap. XXIII, n. 9. Matrimonial Consent. 325 unable to communicate with the priest witnessing their marriage in a tongue known to him, the services of an interpreter may be justly employed. 447. The pastor should not assist at a marriage contracted by proxy or by interpreter, unless there is a just cause and not the slightest doubt can be enter- tained as to the authenticity of the mandate or the trustworthiness of the interpreter. If time allow, he should secure the permission of the Ordinary."^ This canon mentions some of the precautions which must be taken in order to lessen the possibility of error or fraud. To resort to so exceptional a way of contracting marriage, the presence of a just cause and the permission of the Bishop are required. 448. Marriage by proxy or through an interpreter is a real sacrament if entered into by persons who are baptized. Therefore on the part of the contracting parties it is required that they be in the state of grace. The state of mortal sin on the part of the procurator or interpreter would not involve an additional guilt."^ 449. Although the marriage should be contracted invalidly owing to the presence of an impediment, the consent originally given is presumed to persevere un- less its revocation is manifest."* This canon retains the ancient discipline, and the law it promulgates is of .vital importance in the validation of marriages. The consent once given but ineffective on account of the presence of an impediment becomes a factor by means of which a marriage can be vali- dated. The revocation of the consent is a fact which must be proved in the external forum, otherwise its continuance is presumed. Separation or divorce would "' Cod. Ihr. Can., Can. 1091. "' Sanchez, op. cit., lib. II, disp. XI, n. 29 ; Gasp arm, op. cit., n. 740 ; St. Alphonsus, lib. VI, n. 884; Salmaticenses, De Matrimonio, c. Ill, p. 1, n. 10 ; and p. Ill, dub. 4, n. 89, 92. ■" Cod. Iur. Can., Can. 1093. 326 The New Church Law on Matrimony. indicate a revocation of consent. Though the consent may persevere, it does not produce its effect by the mere fact that the inability of the parties was lifted by a dispensation from the impediment interfering with the validity of their wedlock. In all such cases in addi- tion to the dispensation a renewal of consent must also take place. Should such a renewal be impracticable or impossible, as is sometimes the case, then a sanatio in radice would validate the marriage in its very root and would effect the automatic legitimation of such offspring as do not stand in need of a special mandate of the Eoman Pontiff to that effect."^ To apply a sanatio in radice no forinality whatsoever is required and even the presence of the contracting parties may be dispensed with. "' See this work, n. 173 ff. CHAPTER VIII. The Form of Maekiage. (Canon 1094— Canon 1103.) /. About the Form of Marriage in General. 450. The history of the form of marriage is some- what involved and the scope and purpose of this work will be served sufficiently by the presentation of a few leading historical facts. The Council of Trent declared ^ that the Church al- ways discountenanced clandestine marriages on ac- count of the evils which they occasioned. As early as the second century St. Ignatius of Antioch inculcates the necessity of apprising the Bishop of one 's intention to enter into marriage.^ It is the testimony of Tertul- lian that clandestine marriages in the early ages of Christianity were looked upon as sinful unions.' The Church was always conscious of the sacredness of mar- riage and it guarded solicitously the right to marriage which every man inherits by virtue of natural law. To prove these statements sufficient evidence could be ad- vanced from the writings of the early Fathers and the enactments of the various Councils.* The different rites and ceremonies for whose introduction local cus- ' Sessio XXIV, De reformatione matriomonii, cap. I. ' St. Ignatii, Epist. ad Polycarpum, cap. V. ' De pudicitia, cap. IV, see Migne, P. L., vol. II, col. 987 ; also vol. I, col. 1302. • St. Ambeosii, epist. XIX, ad Vigilium, cap. VII ; see Migne, P. L., vol. II, col. 984; c. 5, 6, XXVII, q. 2; c. 4, 5, 6, C. XXX, q. 5; c. 17, C. XXVIII, q. 1; c. 4, C. XXXI, q. 2. 327 328 The New Church Law on Matrimony. toms or universal legislation of the Church were re- sponsible, serve the purpose of enhancing the solem- nity of the celebration of marriage and of emphasizing its sacred character/ 451. Notwithstanding the. strict vigilance exercised and the severe condemnation hurled by the Church against clandestine marriages, the evils assumed pro- portions so alarming that they necessitated the inter- vention of the Fathers convened at the Fourth Lateran Council (1215), whose well-known decree prescribes at least one public announcement of every marriage to be contracted. Up to the time of the Council of Trent the redressive measures taken by the Church with the intention of checking the tendency to contract marriages secretly, were not sufficiently rigorous owing to the fact that the validity of such wedlocks was accepted. As a last re- sort, the Holy See was constrained to have recourse to the most powerful weapon at its command, namely, to promulgate the decree "Tametsi" and to declare null and void all marriages except those contracted in the presence of the proper pastor and at least two wit- nesses." Though this decree, more than any other fac- tor, contributed to the abolition of clandestine mar- riages, it failed to eliminate them altogether. Some of the existing abuses remained unremedied owing to the fact that those places in which the decree was unpub- lished were exempted from the obligation of submit- ting to the law it enforced. Besides this effect, many hardships were created in places benefited by its actual publication. At the root of these perplexities lay the difficulty encountered in the attempt to determine in every individual case the identity of the parochus pro- prius. Prompted by the desire to simplify the dis- ' Wernz. op. cit., 11. 154. ' Deer., De Beformatione matrimonii, sess. XXIV, cap. I. The Form of Marriage. 329 cipline and to reduce the number of invalid marriages, the Holy See, yielding to the entreaties coming from the Hierarchy of the universal Church, deemed it necessary to modify the Tridentine law. The result was the promulgation of the decree "Ne temere" which became operative on the Easter of 1908.'' The wisdom and circumspection with which this decree was formulated and its adaptability to modern times and needs, are evidenced by the fact that it was. incorpo- rated into the new Code in its entirety with only a few changes of minor importance. //. The Form of Marriage in the Present Legislation. 452. As regards the form of marriage, the new law decrees that only those marriages are valid which are contracted before the pastor, or the Ordinary of the place, or a priest delegated by either, and at least two witnesses ; due regard being paid to the rules expressed in the canons on the subject and to the exceptions con- tained in Canons 1098 and 1099." 1. Qualifications of the Witnesses, the Pastor and the Ordinary of the Place Relative to Valid Assistance at Marriages. 453. The new law does not require any special qualifications for persons who are to be the witnesses of a marriage. The natural inference is that any per- son enjoying the use of reason may fill that office, whether a man or a woman, religious or lay. Catholic or non- Catholic, even if excommunicated or interdicted. Individuals belonging to the last three classes may not be tolerated unless no scandal is feared and the per- mission of the Ordinary is obtained." It is not abso- ' Pius X, S. C. C, 2 aug., 1907. • Cod. Iur. Can., Can. 1094. » S. C. S. Off., 19 aug., 1891. 330 The New Church Law on Matrimony. lutely necessary that the witnesses be asked and desig- nated for Op. cit., Can. 1114. "Gen. II, 24. =" De Smet, op. cit., n. 162. Effects of Marriage. 381 The conjugal bond constitutes the two contracting parties a principle of legitimate generation and invests their offspring with all the prerogatives of legal and canonical legitimacy. In conformity with the ancient discipline the offspring of a putative marriage is made equal in all things to one born of a valid marriage. Putative marriage is a wedlock contracted in good faith by at least one of the contracting parties. It remains putative until both consorts become certain of its invalidity." In the strict sense only those chil- dren are legitimate whose parents are validly married. By a signal concession, which is based on the good faith of the putative husband and wife, the church does not discriminate against the offspring born of such a union. 538, The use of marriage is forbidden to consorts who entered into marriage and one of whom subse- quently took a solemn vow of chastity or received Holy Orders. The legitimacy or illegitimacy of their off- spring would depend on whether it was conceived be- fore such a step was taken by one or both of its par- ents, or afterwards.^* On the latter supposition, chil- dren of such unions are sacrilegious, and their legitima- tion can be effected only by a special mandate procured from the Holy See. 539. Should there be a doubt as to the father of the child, the new law states that the father of the child is he whom the valid marriage indicates, unless the con- trary is proved by evident arguments. Children born at least six months after the marriage, or within ten months from the day the conjugal life was discon- tinued are presumed legitimate." The first part of the foregoing canon is taken ver- "COD. lUB. Can., Can. 1015; see this work, n. 54. " C. 1, 2, 14, X, de flliis presbyterorum ordirumdis vel non, I, 17 ; c. 2, 4, 8, 10, 11, 13-15, X, qui filii sint legitimi IV, 17. "Cod. Iur. Can., Can. 1115. 382 The New Church Law on Matrimony. hatim from the Roman law.^° The declaration that the legitimate husband of the wife is not the father of the child to which she gave birth, would not be accepted by an ecclesiastical court, unless supported by irrefut- able, conclusive proofs." The fact that the mother was guilty of adultery, even after her admission of such moral offence, would not clearly indicate the illegiti- macy of her offspring. On the contrary, even under such circumstances, the child has the right to vindicate legitimacy for himself if at least six months elapsed between the celebration of his parents' marriage and his birth; or not a longer period than ten months elapsed between the discontinuance of his parents' matrimonial cohabitation and his birth. Thus a child is endowed with a presumptive legitimacy if in the first instance 180, and in the second 300 days passed between the periods indicated. This presumption is only pre- sumption of law, which is equivalent to giving the child the benefit of the doubt, therefore convincing proofs to the contrary would disestablish it.^' 540. The last two canons of this chapter are de- voted to legislation relative to illegitimate offspring. The child becomes legitimate, says the new Code, by the subsequent marriage of the parents, whether such a marriage be real or only putative, newly contracted, or validated, even if non-consummated, provided the parents were competent to contract marriage at the time the child was conceived, or during the period of the mother's pregnancy, or at the time of the child's birth.^' One of the canonical effects of the revalidation of *■ L 5 flf., Be in ius voc. ^'L. 6, §1, De lis qui sui. '' Gasparri, op. cit., n. 1069 ; De Lugo, De iustitia et iure, XIII, n. 26; St. Alphonsus, lib. Ill, n. 654, 924; Beiffenstul, IV, XVII, n. 24; SCHMALZGBUBER, IV, XVII, n. 40. "Cod. Iur. Can., Can. 1116. Effects of Marriage. 383 marriage is the automatic legitimation of the off- spring.'" The law embodied in this canon introduces no innovation, on the contrary, it approves the opinion generally advocated by the leading canonists of the past." There are two main classes of children, namely, spurious and natural. The former are subdivided into adulterine, sacrilegious, incestuous and nefarious.'^ An automatic legitimation by way of validating the marriage can be effected only in the case of natural children, namely, offspring whose parents were free to marry either at the time the child was conceived, or during the period the mother was with child, or at the time the child was born. In all such cases by a fiction of the law the effects of a validated marriage retroact to the time the illegitiinate child was born. 541, Even if there was an obstacle in the way of the parents' marriage at the time the child was conceived, but this obstacle was removed either during the period of gestation, or at the birth of the child, the subse- quent marriage will not be hindered in effecting the legitimation of such offspring. To exemplify, let us suppose that A. (married) acquired carnal knowledge of B. (single) during the lifetime of his wife. After the death of his wife, but before a child is born as the result of his sinful act, he marries B. As long as there was no impediment between A. and B. at the time of the child's birth, the subsequent marriage would effect its legitimation. The same would be true if the two contracted mar- riage in good faith and it was subsequently discovered that they were laboring under a diriment impediment. The effect would be the same whether the natural •° C. 1, 6, X, qui filii sint legitimi, IV, 17. " Reifpenstul, IV, XVII, n. 30; De Angelis, I, XVII, n. 4; SCHMALZGRtJBER, IV, XVII, n. 65 ff. " For the definition of the foregoing terms consult this work under n. 173. 384 The New Church Law on Matrimony. parents entered into marriage before the child was born, or after its birth, as long as in any of the three periods indicated above they were free to enter into wedlock. Even if the parents contracted an invalid marriage in bad faith, the illegitimate offspring of such union may be legitimated by the validation of their marriage, provided the other conditions are the same as stated above/^ 542. Children whose parents are unknown, as, for instance, foundlings, according to the common opinion are to be reputed as legitimate, for the child is always entitled to the benefit of the doubt.^* The legitimation of the child in canonical discipline has far-reaching consequences. The law says: Chil- dren legitimated by subsequent marriage are likened to legitimate children as Vegards all canonical effects, unless the law expressly ordains otherwise.^^ The new law rules that only legitimate children may register in a Seminary for the purpose of pursuing theological studies,'" but it removes the blemish of irregularity ex defectu from a child that was legitimated.^^ Ille- gitimate children though legitimated by subsequent marriage may not be elevated to the dignity of the Car- dinalate,'^ of the Episcopate,^' of Abbot or of Prelate nullius.*" Outside these few exceptions the canon law does not discriminate between a legitimate child and one who was legitimated by subsequent marriage. It must be borne in mind that an illegitimate child can be legitimated only under the condition that his natural " Bbnedicttjs XIV, ep. "Eedditae Nobis," $38, 5 dec, 1744. " Bbnedictus XIV, loc. cit., §4. "Cod. Iur. Can., Can. 1117. " Op. cit., Can. 1363, jl. " Op. cit., Can. 984. "Op. cit., Can. 232, §2, n. 1; SiXTUS V, const. "Postquam," dec, 1586, §12. "Op. cit.. Can. 331, §1, n. 1. " Op. cit., Can. 320, ^2. Effects of Marriage. 385 mother enteres into marriage with his natural father. Marriage between a natural mother and an adoptive father would fail to produce a similar effect. CHAPTER XII. The Sepaeation of Consorts. (Canon 1118— Canon 1132.) /. Dissolution of the Bond. 1. Absolute Indissolubility. 543. A valid marriage ratified and consummated cannot be dissolved by any human power, or any cause except death.^ This canon, more emphatically than some others,^ defends the absolute indissolubility of the ratified and consummated Christian marriage. It distinctly pro- claims that no power on earth can dissolve the bond begotten by such marriage, nor can any cause ex- cept death be instrumental in producing the same ef- fect. Theologians discuss the question whether God by His absolute power can effect the dissolution of such a bond. The answer to this question must be affirmative, but it is clear that such a revelation has never been made nor has God authorized any institution, not even the Catholic Church, to dissolve under any circum- stances or for any reasons the bond of such a union.^ 544. The proposition announced in this canon can be defended by means of every source the Church has ' Cod. Iub. Can., Can. 1118. ^Op. cit., Can. 1013, §2; Can. 1110. ' Pesch, op. cit., vol. VII, u. 818 ff. ; Tanner, Be matrimonio, disp. VIII, q. 5, dub. 3; Palmieki, De matrvmonio, p. 202 ff. 386 Separation of Consorts. 387 at her disposal. As has already been stated, natural law endows marriage with a relative indissolubility.* This relative indissolubility becomes absolute if two Christians contract and consummate marriage, for the matrimonial bond that springs up between them is in- vested with sacramental character. The decrees of the various Councils," the pronouncements of the Roman Pontiffs,' and the testimony of the Fathers of the Church and the ecclesiastical writers ^ vindicate the absolute indissolubility of the matrimonial bond be- tween baptized persons when strengthened by the fact of consummation. The ruling of the supreme ecclesi- astical authority in the case of Lothaire, Philip Au- gustus of France and Henry VIII of England can be advanced as incontestable historical facts attesting the tenacious adherence of the Church to the doctrine con- tained in the canon with which this chapter begins. 545. The foregoing testimony gathered from vari- ous ecclesiastical sources is endowed with still greater force by the authority of the Sacred Scripture.' There are only two passages in Holy Writ which can be ad- vanced as seemingly militating against the teaching of the Church on this point. These are found in * See this work, n. 41 ff. ■Can. VIII, IX, Council of Elvira (300) ; Can. VIII, the XI Synod of Carthage (407) ; Can. VI, Council of Angers (435) ; Can. XII, Council of Nantes (about 685) ; Can. X, Council of Hereford (673) ; Decree of the Armenians, Council of Florence; Can. VII, Council of Trent, sess. XXIV. •INNOCKNT I (401-407) to Exuperius, Prohus and Victricius (Hab- DOUIN, I, col. 1005, c. 6; col. 1008; col. 1002); Zachaby (741-752), op. cit, col. 1902; Stephen II (754), op. cit., vol. Ill, col. 1987-1988; Alexander III, c. 7, X, de conversione coniugatorum, III, 21; Inno- cent III, c. 7, X, de divortiis, IV, 19 ; Leo XIII, encycl. "Arcanum." 'Origin, Comment, in Matth., t. XIV, n. 23, Migne, vol. XIII, col. 1246; St. Asterius Amasenus, Homelia in locum Evang. sec. Matth., Migne, P. 0., vol. XL, col. 227 ; St. Augustine, De coniugiis adulterinis, Migne, P. L., vol. XL, col. 483 ff.; Perrone, op. cit., vol. Ill, p. 219-352; KoskovAnt, Suppl. et collect, monumentorum, vol. I, p. 457 ff.; Pal- MIERI, op. cit., p. 141 ff. 'Mark X, 11; LuTce XVI, 18. 388 The New Church Law on Matrimony. Matthew V, 32,' and XIX, 9.'" Should these passages be interpreted in the sense in which they are under- stood by some of our dissentient brethren, there would be a positive contradiction in the Sacred Scripture, for the parallel passages of St. Mark " and St. Luke ^^ teach just the contrary. Since we cannot claim the inspiration of the Holy Ghost for contradictory state- ments there must be a clue whereby the two above- quoted texts of St. Matthew can be reconciled with the statements of the other Evangelists. 546. St. Matthew quotes our Lord as stating that from the beginning of creation man was not permitted to put away his wife.^'* Such permission was granted by Moses "by reason of the hardness of your heart," said Christ to His Jewish hearers." After these words the" Master announced His doctrine on marriage, which was to be the law of the New Covenant. If we consult the parallel passages of the other Evangelists we must conclude that Christ restored marriage to its pristine ideality, namely, to an indissoluble bond correlated with monogyny and monandry. It was in this sense that His words were interpreted by His hearers, for on the contrary supposition the New Testament would have introduced no change, and the displeasure ex- pressed by the disciples at the hearing of Christ's new doctrine would have been entirely out of place.^° ' "But I say to you, that whosoever shall put away his wife, except- ing for the cause of fornication, maketh her commit adultery: and he that shall marry her that is put away committeth adultery." " "And I say to you, that whosoever shall put away his wife, except it be for fornication, maketh her commit adultery: and he that shall marry her that is put away committeth adultery." n "Whosoever shall put away his wife and marry another, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery. (Mark X, 11-5-2.) " "Every one that putteth away his wife, and marrieth another, com- mitteth adultery, and he that marrieth her that is put away from her husband, committeth adultery." (Luke XVI, 18.) "Matt. XIX, 8. " Matt., loc. cit., and V, 31. "Jfaft. XIX, 10. Separation of Consorts. 389 Should it be asserted that adulter}^ ipso facto dis- solves the matrimonial bond, such teaching would prove a very potent incentive to sin. Furthermore, such an admission would give rise to a new difficulty irreconcilable with St. Matthew. How are we to ex- pound the words : "And he that shall marry her that is put away, committeth adultery," if the moral offence involved in such a crime effects an automatic dissolu- tion of the matrimonial bond? The words "maketh her to commit adultery" can be interpreted, without taking undue liberty with the sacred text, as conveying the meaning that he who puts away his wife, unless she is guilty of fornication, ex- poses her to the danger of committing adultery, and by contributing to that danger "maketh her commit adultery"; in other words, should she commit such a moral offence God would look upon him as sharing her guilt. Should he put her away because she was guilty of adultery, he would not be responsible in the sight of God for the adultery she might commit. The second text taken from St. Matthew can also be explained in a sense not disagreeing with the other scriptural passages. The sentence, as some exegetes maintain, is to be considered elliptical, and the ellipsis must be supplied thus : He who shall put away his wife (which is lawful only in the case of fornication) and shall marry another, committeth adultery. This Avould be equivalent to saying that in the case of fornication the man is justified in putting away his wife ; in other words, a separation is warranted; but, St. Paul adds, "if she depart, let her remain unmarried or be recon- ciled with her husband. ' ' ^'' Another interpretation suggests that in this second passage Christ stigmatizes as adulterous the man who would put away his wife and marry another, but He ■« I Cor. VIII, 11. 390 The New Church Law on Matrimony. refrains from pronouncing a judgment upon a man who would put away his wife because she is guilty of fornication. Such a suspended judgment would have to be supplied from other passages of Holy Writ, as, for instance, those of St. Mark, St. Luke and St. Paul, quoted above in foot-notes 11, 12 and 16. 2. Relative Indissolubility. 547. Absolute indissolubility, as explained above, can be attributed only to ratified and consummated marriages. A non-consummated marriage, the new Code says, between two baptized individuals, or be- tween a baptized and an unbaptized person is dissolved by the very act of making a solemn religious profes- sion, or by means of dispensation granted for a just cause by the Apostolic See at the request of' both par- ties, or of either party even if the other is unwilling." The two different ways whereby a non-consum- mated marriage can be dissolved are: (1) Religious profession ; (2) Papal dispensation. The new law does not discriminate in this respect between a marriage in which both parties are baptized, and another in which one of the consorts is unbaptized. In the course of the serious controversy, already re- ferred to in this work, between Peter Lombard with the school of Paris on one side^ and G-ratian with the school of Bologna on the other, Alexander III cut the, Gordian knot by declaring officially that a ratified and non-consummated marriage is a perfect contract and a real sacrament, but that the fact of non-consum- mation makes it dissoluble by religious profession and by Papal dispensation." " Cod. Iur. Can., Can. 1119. " C. 2, 7, X, de conversione coniugatorum, III, 32 ; Esmein, op. cit., vol. I, p. 124 ff. Separation of Consorts. 391 A. Religious Profession. 548. Besides Alexander III, Innocent III also ad- vocated the opinion that a non-consummated marriage is dissolved by religious profession." This doctrine was subsequently incorporated into the official acts of the Council of Trent.™ The doctrine being thus deter- mined as a dogma of faith, it is inconsequential whether it follows by virtue of natural or of ecclesiastical law," though we do not join the ranks of those who advocate the former opinion. The ratified marriage is dissolved as soon as one of the contracting parties takes a solemn vow of religion, even if the other party should object to such a step." The conditions necessary to constitute a solemn vow are discussed in this work in connection with the diriment impediment of solemn religious profession.^^ When a solemn religious profession is made validly and the vow of chastity is taken according to the form prescribed by the new law, the bond of a ratified and non-consummated marriage, a fortiori, of a legitimate non-consummated marriage becomes ipso facto dis- solved. The power of the solemn religious profession to dis- solve the matrimonial bond must not be limited to marriages contracted originally by two baptized per- sons or by a baptized and an unbaptized individual. The effect would be the same even if the marriage was contracted by two infidels who after the consumma- tion of their wedlock became converts, or by two infidels one of whom, after the marriage was consummated in » C. 14, X, tit. cit., Ill, 32. " Sessio XXIV, Be Sacramento matrimonii, can. VI. =" Gasparri, op. cit., n. 1082 ; Webnz, op. cit., n. 698 ; Lehmkuhl, op. cit., vol. II, n. 703; ScHMALZGRiJBER, lib. IV, tit. VI, n. 54. '^ Pesch, vol. VII, n. 804 ff., where he enumerates several Saints whose marriage was dissolved owing to such a profession. =« See this work, n. 288. 392 The New Church Law on Matrimony. infidelity, received baptism in a non-Catholic sect and before a new consummation of the marriage embraced the true faith, and subsequently .made a solemn re- ligious profession. Both these hypotheses presuppose that after the conversion the marriage was not consum- mated. Thus the new Code terminates a long-standing controversy and endows the solemn religious profes- sion with the power to dissolve automatically the mat- rimonial bond arising from the foregoing four kinds of marriage. Should the conversion be followed by a new consum- mation of marriage, whether due to an accident, or to violence, or even if unintentional, the vow would be- come divested of its nullifying force and the party remaining in the world would lose his privilege to re- marriage and would have to live a celibate life." 549. The simple vow of chastity taken by the Scho- lastics of the Society of Jesus invests one with the re- ligious status and constitutes a diriment impediment, but it does not possess the effect ^° proper only to a solemn religious vow strictly so called. The marriage of two intidels who become converted to the faith without consummating their marriage either in infidelity or subsequently to their conversion, becomes ratified to all intents and purposes. Without any renewal of consent it becomes a sacrament, and the matrimonial bond would be dissolved should one of them embrace the religious state. It must be borne in mind that the reception of Sacred Orders does not pro- duce the effect attributed to solemn religious profes- sion. B. Papal Dispensation. 550. The new law states distinctly that a papal dis- pensation granted ex iusta causa dissolves a non-con- " Wernz, op. cit., u. 698 ; Kosset, op. cit., I, n. 684 ff. "■ Benedictus XIV, De Synodo Dioecesana, lib. XIII, cap. XII, u. 9 S. Separation of Consorts. 393 summated marriage, between two baptized persons or between a baptized and an unbaptized person. Thus the new law terminates a long-standing controversy and clearly vindicates the right of the Roman Pontiff to dissolve such marriages provided there is a just cause. In the absence of such a cause the Holy See could not put into operation such privilege, for the power invoked by it in the contemplated cases is the result of delegation embodied in divine commission.^" Examples in which a dispensation from a ratified and non-consummated marriage was granted are not infrequent." Among the causes justifying such a dis- pensation should be enumerated: (1) The well-founded fear of great future scandal or of dissension among consanguineous persons; (2) The well-founded sus- picion of impotency combined with the danger of incon- tinence; (3) A supervening contagious disease; (4) The danger of perversion in case the Catholic con- tracted marriage with one who is a serious menace to his faith; (5) The attempting of another marriage from which, though it is invalid, there is no avenue of escape; (6) Mutual consent of the two parties to sepa- rate, provided there is a good cause.^' 551. Besides the presence of a just cause ^° for sep- aration, the fact of the non-consummation of the mar- riage must also be ascertained beyond all doubt. The new law rules that this be done by means of inspectio corporis per peritos facienda ^° and by the testimony of seven witnesses {testes qui septimae manus audiunt) adduced by each contracting party." The evidence "Webnz, op. cit., n. 699; Gasparri, op. cit., n. 1081; Schmalzgrubehi, lib. IV, tit. XIX, n. 5 ; Sanchez, op. cit., lib. II, disp. XV, n. 6. " SCHMALZGRUBER, loc. cit., n. 46 ; Perrone, vol. Ill, p. 509 ff. ; Pesch, vol. VII, n. 811 ff. "'De Justis, II, X, n. 21-34; Sanchez, lib. II, disp. XVI; Schmalz- GEiiBER, loc. cit., n. 53 ff. " Cod. Iur. Can., Can. 1973. "Op. cit.. Can. 1976. "' Op. cit., Can. 1975. 394 The New Church Law on Matrimony. thus collected must be submitted to the Sacred Congre- gation of the Sacraments "^ and the matrimonial proc- ess must be regulated by rules laid down in the new Code/^ 552. The question might arise what competence may the Roman Pontiff claim over marriages contracted and consummated in infidelity! It is manifest that as long as the consorts remain unbaptized they are in no way subject to his jurisdiction. If one or both of them should become converted their marriage would be sub- ject to the regulation of the Church. Under the scope of the new law must be included also the marriage of persons who previously to their conversion contracted and consummated their marriage in infidelity. In the past there was a controversy among theologians as to whether such a marriage could be dissolved as ratum non-consummatum, it being supposed that after their conversion it was not consummated. The affirmative side of the question was defended by the majority of canonists," though the negative side was not without advocates whose opinions have great weight.^^ The arguments of the affirmative side are based on the his- torical fact that dissolution of such marriages was actually effected by the Roman Pontiffs,^® and on the principle that ah esse ad posse valet illatio, provided the axiom is applied to the Roman Pontiff. The bond of a marriage contracted and consummated in infidelity is assuredly stronger when it becomes also ratified ^Op. cit., Can. 1962. " See lib. IV, tit. XX, Canon 1960— Canon 1992. " Gasparri, op. cit., n. 1108 ff. ; St. Alphonsus, lib. VI, n. 956; Gdbt-Ballerini, torn. II, n. 759, 789; Sanchez, lib. II, disp. XVII, n. 62 ; Wernz, op. cit., n. 699 ; Db Smet, op. cit., n. 188 ; D'Annibale, vol. Ill, n. 470. "Benedictus XIV, De Synodn Dioecesana, lib. VI, cap. IV, n. 5, and lib. XIII, cap. XXI, n. 4; and also Quaest. Can., 546; Fbije, op. cit., n. 602; Schmalzgruber, h. t., n. 58 ff. ; Eosset, op. cit., n. 647. " Pius V, deor., 2 aug., 1571 ; G-regoeius XIII, deer., 25 ian., 1585. Separation of Consorts. 395 after the conversion of the consorts than a mere non- consununated ratified marriage." Furthermore, the new law conditions the power of the Eoman Pontiff to dissolve such marriages on the presence of a just cause. If such cause is required for the dissolution of a mere ratified marriage a fortiori would there be an additional reason to exact the same requirement in the case of a ratified marriage con- tracted and consummated in infidelity. Moreover, it would be an easier task to find a sufficiently just cause in the former case than in the case of persons who al- ready lived in matrimonial relations for some time and who probably became parents of several children. But even in such case the presence of a just cause being presupposed the Roman Pontiff may dissolve their bond, for his right to do so is supported not only by the practice of the Holy See but also by the new law.^' It is seriously questionable whether the Roman Pontiff could, arbitrarily and without just cause, annul such marriages. The pages that follow treat on the dissolution of a marriage legitimate and consummated, namely, con- tracted and consummated in infidelity between persons of whom one becomes a convert. C. Pauline Privilege. 553. The Pauline Privilege is a special concession by virtue of which, on the ground of the words of St. Paul,^' a converted infidel, whose consort remains in "Weenz expressly denies that solemn religious profession could dis- solve the bond of such a. marriage. See his work, n. 799. " Such is the first impression conveyed by Canon 1119. Since it has not been explained yet by any canonist, we have no authority to quote in its support. " "If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a 396 The New Church Law on Matrimony. infidelity and declines to cohabit with him or will not do so without offering an insult to the Creator {sine contumelia Creatoris), may contract another marriage, whereby his first marriage, though it be consummated, becomes ipso facto dissolved. This privilege does not obtain in a marriage between a baptized and an un- baptized person contracted with dispensation from the impediment of disparity of worship." A correct inter- pretation of the Pauline Privilege is given by Innocent III in the Decretals of Gregory IX.*^ The Pauline Privilege is of divine origin,*^ promul- gated by the Apostle of the Gentiles to favor the faith. It is natural that a married infidel would have been reluctant to embrace the true faith if he foresaw that subsequently to his conversion he would have to live a life of continence owing to the fact that his consort, remaining in infidelity, would very likely refuse to co- habit Avith him peaceably. 554. It is morally certain that St. Paul, in the text quoted in the foot-note number 39, contemplates the case of two infidels who contracted marriage in infidel- ity and one of whom subsequently became a convert to the faith. Such is the interpretation of all reliable exegetes and it is, moreover, confirmed by the practice of the Church, for she never dissolves wedlock entered into by a Catholic and an infidel when the proper dis- husband that believeth not, and he consent to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the believing wife: and the unbelieving wife is sanctified by the believ- ing husband: otherwise your children should be unclean, but now they are holy. But if the unbeliever depart, let him depart. For a hrother or sister is not under servitude in such cases. But God hath called us in peace." (I Cor. VII, 12-15.) "Cod. Iue. Can., Can. 1120. '' 0. 7, X, de divortiis, IV, 19. «S. C. S. Off., deer. 11, iul., 1886; Benedictds XIV, De Synodo Dioecesana, lib. VI, cap. IV, n. 3; Coknely, Comment, in I, Cor., p. 179 ff.; St. Alphonsus, op. cit., lib. VI, n. 955; Sanchez, op. cit., lib. VII, disp. LXXIV, n. 4. Separation of Consorts. 397 pensation has been obtained.*^ This fact is emphasized also by the new law." St. Paul states expressly that if the unconverted con- sort wishes to cohabit peaceably the converted party should ' ' not put her away. ' ' The context leads one to believe that this is only a personal advice, for he intro- duces this statement with the words: "For the rest I speak, not the Lord." If, therefore, a converted con- sort leaves the unconverted spouse who is willing to cohabit peaceably, by virtue of Pauline Privilege such a marriage would not be dissolved quoad vinculum, but only a separation a toro et mensa would be ef- fected.*' 555. In order that the Pauline Privilege may be in- voked the conversion of one of the infidels is a conditio sine qua non. Conversion here implies the reception of baptism, even if it should be in a heretical or schismatic sect.*" Should a convert to a heretical or schismatic sect make use of the Pauline Privilege by marrying a person who professes membership in the same sect, his ■ marriage would be valid, but illicit for the reason that St. Paul promulgated that privilege in order to benefit converts to the true faith. The words of the Apostle clearly indicate that only a convert may resort to the privilege, a catechumen would not be permitted to avail himself of it." The words "if the unbeliever departs, let Mm, de- "S. C. Inq., 11 aug., 1759; see Peekone, op. cit., vol. II, p. 323. ^*CoD. lUR. Can., Can., 1120, J2. "St. Thomas, Suppl. Illae, p., q. LIX, art., V, c; Lombardus, 4, Sent., dist. XXXIX; Schmalzgrdber, De divortiis, n. 35; St. Augus- TlNus, MiGNB, P. L., Vol. XL, col. 469. " Palmieri, op. cit., th. XXVII; Lehmkuhl, t. II, n. 705; Perrone, vol II, p. 319; Ballerini, OpiLS Morale, vol. VI, n. 718 ff. ; St. Thomas, Suppl. Illae, p., q. LIX, art. 4; Archiv f. h. K., vol. XLVI, p. 402; Wernz, op. cit., n. 702. " S. C. de Prop. Fide, 16 ian., 1803 ; in the Collectanea, n. 1379 ; an infidel should not be taken into the Church unless he consents to retain his consort, provided the latter is disposed to cohabit with him peace- ably. (S. C. S. Off., 13 apr., 1908.) 398 The New Church Law on Matrimony. part" are not to be interpreted only in the sense of physical departure. There meaning is to be extended so as to comprise also moral departure which would take place should the infidel party refuse to cohabit peaceably with the converted ' spouse, or should it (without such refusal) be clear that no such cohabita- tion can be established without the offering of insult to the Creator. The departure of the infidel consort need not neces- sarily be effected by hatred of religion, nor does it have to be a discessus malitiosus. It suffices that the infidel consort is actually, whether willingly or by ab- duction, separated from the converted spouse and fails, to return after the interpellations are duly ihade.*^ Should the deserting consort subsequently embrace the true faith, the other consort could not invoke the Pau- line Privilege in his favor unless his second marriage preceded the conversion of his consort.*" The con- verted party would not forfeit his right to another marriage even if the other consort should express a willingness to embrace the true faith, provided she re- fused to extend to him the privilege of community of bed and board.'" 556. It is immaterial by what motive the infidel party was actuated in his refusal ; provided it was not occasioned by an overt act performed by the converted party after the reception of baptism, and in itself suf- ficient to offer the infidel consort a reasonable and just cause for the discontinuance of cohabitation.'^ If an infidel party should repudiate a legitimate consort on "8. C. Inq., 22 nov., 1871, 'and 8 iul., 1891; see Collectanea, n. 1356 and 1362; D'Annibalb, vol. Ill, n. 475, note 13; Sanchez, lib. VII, disp. LXXIV, n. 15 ff. "S. C. S. Off., 11, 20 iun., 1866, 18 mail, 1892; see Collectanea, nn. 1353, 1354, and 2185; Innocent III, c. 8, X, de di/vortiis, IV, 19. "S. C. S. Off., 8 iul., 1891; see Collectanea, n. 1362. "S. C. S. Off., 5 aug., 1759; see Collectanea, n. 1312; 26 apr., 1899, see new Collectanea, n. 2044. Separation of Contorts. 399 the ground of adultery committed before conversion, and such guilty party after becoming a convert should invite the innocent infidel party to cohabitation, the latter 's refusal would justify the converted consort's entrance into another marriage." But such entrance into marriage would not be justified should the con- verted party be guilty of adultery after his or her con- version/^ The words "contwmelia Creatoris" are verified when the intention on the part of the unconverted consort to jeopardize the faith of the converted spouse is mani- fested, whether it be by an attempt to prevail upon her to renounce her faith,'* or to participate with him in acts that are sinful."' An insult to the Creator would be offered if the infidel party should refuse to discon- tinue the practice of concubinage or should decline to bring up the offspring in the Catholic faith.'" The right of the converted party to resort to the Pauline Privilege would not be lost even if the infidel consort should be willing to comply with all the condi- tions required by law, but is so situated, even if through no fault of her own, that a restoration of conjugal re- lationship is a practical impossibility. This condition would be verified if the unconverted party were held in captivity or sequestration," or even if she were sold by her own husband, provided the sale had taken place before his conversion.'* Should the converted party after the reception of baptism place an act which would make the re-establishment of marital relations impossi- ble he would forfeit his right to the Pauline Privilege. The converted party may not presume to benefit by " 8. C. de Prop. Fide, 30 ian., 1807 ; see Collectanea, n. 1332. "S. C. de Prop. Fide, 16 ian., 1797; see Collectanea, n. 1318. " S. C. S. Off., 29 nov., 1882 ; see Collectanea, n. 1358. "S. C. de Prop. Fide, 5 mart., 1816; see Collectanea, n. 1323. "•S. C. S. Off., 11 iul., 1886; see Collectanea, n. 1353. "S. C. S. Off., 12 iun., 1850; see Collectanea, u. 1339. "S. C. S. Off., 8 iul., 1891; see Collectanea, a. 1362. 400 The New Church Law on Matrimony, the Pauline Privilege if the state implied by the words "contumelia Creatoris" is caused, not by the other consort, but by her kin/' • 557. The marriage contracted in infidelity is not dissolved by the fact of conversion or reception of bap- tism."" It remains valid until the infidel party becomes guilty of physical or moral desertion and the converted party, having complied with the conditions prescribed by law, contracts another marriage. The converted party by virtue of the Pauline Privi- lege would not be at liberty to contract another mar- riage validly if the infidel party should consent to co- habit peaceably and should be willing to subscribe to all conditions required by law, but be unwilling to be converted. Such liberty on the part of the converted party is nowhere intimated in the Pauline Privilege, nor is it in harmony with the former discipline of the Church or the teaching of theologians."^ To maintain that the Church promulgated a general law by which the converted spouse was constrained to discontinue his cohabitation with the infidel spouse, is to advocate an opinion irreconcilable with the present discipline, Wernz remarks that such a law would of itself contain an implicit permission for the converted party to enter into another marriage, but it can nowhere be shown that such a law has ever been enforced except in cases in which the promise of the infidel party to cohabit peaceably proved fictitious. This opinion is in perfect accord with the views advanced by the medieval canonists."^ " S. C. de Prop. Fide, 5 mart., 1816 ; see Collectanea, n. 1323. """ "Cum per sacramentum baptism! non solvantur coniugia, sed erimina dimittantur." (Innooentius III, e. 8, X, de dwortiis, IV, 19. " Wernz, op. ctt., n. 702, note 63 ; Pesch, vol. VII, n. 788 ; ScHMAMi- GEiJBER, Be divortus, n. 35; St. Thomas, Suppl. Illae, p., q. LIX, a. 5; RossET, op. cit., n. 604 if. ■" S. C. Inq., 28 nov., 1894; see Acta Sanctae Sedis, vol. XXIX, p. 564; RossET, op. cit., n. 607 and 611. Separation of Consorts. 401 It is therefore the second marriage bond contracted in Christianity that dissolves the one contracted in in- fidelity. After the converted consort enters into a sec- ond marriage, owing to the absolute dissolution of the former vinculum, the infidel party is also free to con- tract another marriage, but not until then. This state- ment would apply even if such infidel party should at- tempt marriage after becoming a convert."' 558. In doubtful marriages contracted between an infidel and a person doubtfully baptized, or between two infidels, the doubt must be settled favorably to the faith. In this connection one must bear in mind that a marriage between an infidel and a doubtfully baptized individual is to be considered invalid,"* and that such a baptism is subject to the principal of presumption."' Should the conversion of one consort be followed by the conversion of the other, provided their marriage contracted in infidelity was valid, the spouse converted first should re.-establish conjugal life with the other."" Such an obligation may be urged only ex caritate, it is a point of controversy whether it binds also ex iustitia. Needless to say that no such obligation can be imposed if the spouse converted first has already remarried, or made a solemn religious profession, or received Holy Orders. Nor can the second convert be forced to return to the first if the latter after his conversion was guilty of an act which justified the former in discontinuing community of bed and board even while yet an infidel. It is advisable that in case dissensions are feared co- habitation should not be urged, but rather separation a toro et mensa should willingly be granted. "S. C. Inq., 16 sept., 1824; 15 sept., 1858; see Collectanea, n. 1328 and 1349; Schmalzgruber, h. t., n. 28 ff.; Benemctus XIV, Quaest. canon., 546, n. 12. " S. C. Inq., 5 iul., 1853. "'See this work, n. 238. "Feije, op. cit., n. 499; S. C. Inq., 11 iul., 1866, ad 8. 402 The New Church Law on Matrimony. 559. As long as the converted party, whom the in- fidel party has deserted without reason, remains celi- bate, the infidel party cannot validly enter into another marriage. The same would hold good even if the con- verted party under such circumstances would embrace the. religious state or receive Holy Orders. With re- gard to Holy Orders all theologians agree, but they are not in agreement as regards the effect the solemn pro- fession has on such marriage. No doubt can be enter- tained should there be question of a marriage which was not consummated either before or after the bap- tism of one or both consorts. In that case the dissolu- tion of such a matrimonial bond would be effected by the very act of either party taking the solemn vow."' But the contemplated cases presuppose two things, namely, (a) a marriage consummated in infidelity; (b) departure of the infidel party without a reason. Should such a marriage be dissolved by the solemn religious profession of the converted party, and. should the in- fidel be at liberty to marry another, such liberty would be equivalent to catering to the contumacious infidel party."* Since we cannot suppose that the Church or the Roman Pontiff would wish to offer to the uncon- verted party an incentive to sin, we are constrained to adhere to the opinion that such solemn religious profes- sion, under the given circumstances, does not effect an absolute dissolution of the matrimonial bond. 560. The perusal of the foregoing statements ought to make it clear that the converted party after the re- ception of baptism may not depart from the other con- sort without warning "quasi insalutato ho spite," To prevent such an action the present discipline, as well as the former, prescribed interpellations to be made by the converted party. The new law says: Before the " Cod. Iur. Can., Can. 1119. "Webnz, op. cit., n. 702, note 71. Separation of Consorts. 403 converted and baptized consort may contract a new marriage validly, he is obliged, the provision made in canon 1125 being observed, to interpellate the infidel party as to whether she is willing: (1) To be converted and to receive baptism ; "" (2) At least to cohabit peace- ably without offering insult to the Creator. These in- terpellations must always be made unless the Holy See declares otherwise/" The foregoing canon settles the question whether the interpellation is necessary ad validitatem secundi mat- rimonii in the case of a convert whose first marriage was consummated in infidelity. Ballerini maintains that interpellation is prescribed for the purpose of ascertaining the will of the unconverted consort, but that the validity of the second marriage depends exclu- sively on the objective willingness or unwillingness of the infidel party to cohabit with the converted spouse sine contumelia CreatorisJ^ This opinion can no longer be advocated, for even the former discipline in- culcated the necessity of interpellation as a duty origi- nating from divine precept,^^ and insisted on it even if the infidel party publicly repudiated the converted consort.^^ 561. The two questions which form the matter of the interpellation are proposed by the converted con- sort to the infidel party in order to ascertain whether there is a sufficient reason for the contracting of a sec- ond marriage. A negative answer to the first question would not authorize such a step, unless the answer to "S. C. de Prop. Fide, 16 ian., 1797; see Collectanea, n. 1318, 1323, 1361. '"Cod. Iub. Can., Can. 1121. " Gubt-Ballerjni, vol. II, n. 579, foot-note ; Perrone, vol. II, p. 323 ; for the criticism of the opinion of D'Annibale and Scherer, see Weknz, op. cit., n. 703, note 72. " S. C. Inq., 12 iun., 1850 ; see Collectanea, n. 1339 ; Feije, op. cit., n. 487 ff. ; PUTZBat, op. cit., n. 200. "S. C. de Prop. Fide, 5 mart., 1810; see Collectanea, n. 1323. 404 The New Church Law on Matrimony. the second question be also negative. Should the first question be answered affirmatively and the second nega- tively, the converted spouse would be justified in enter- ing into another marriage, provided it should take place before the conversion of the other party. A negative answer to the first question and an affirmative answer to the second would necessitate the re-establishment of conjugal life, provided the answer was not feigned. 562. By a special concession of the Holy See the in- terpellation may be dispensed with either in toto, in which case such a dispensation amounts to a dissolution of the former marriage bond, or in parte, namely, from the first or the second question. By virtue of special faculties granted to missionaries in infidel countries, a converted polygamist may be dispensed from the necessity of interpellating his first and only legitimate wife in infidelity as to whether she wishes to cohabit with him peaceably or not. A negative answer given to the first part of the interpellations, namely, a disin- clination to become a convert, is in itself a justifying reason for the baptized consort to enter into a second marriage with any of his pseudo-wives, provided the one he selects embraces the true faith." In practice the new law establishes the rule that the interpellation is always required for the validity of the second marriage, even if the futility of such an act is clearly foreseen, unless the Eoman Pontiff dispenses from it. Of the dispensation we shall treat later. 563. The manner of making these interpellations is clearly stated in the new Code : Interpellations, • as a rule, should be made in at least a summary or extra- judicial form by the authority of the converted con- sort 's Ordinary, who is also to grant, at the request of the infidel consort, a time for deliberation with the " PuTZBR, op. cit., n. 128; rErjE, op. cit, n. 481; Coll. Miss., n. 942, 948. Separation of Consorts. 405 warning that after the futile expiration of the allotted period a negative answer will be presumed. Even pri- vate interpellations made on the initiative of the con- verted consort are valid, and also licit, if the foregoing form cannot be observed ; in such a case, evidence that the interpellations have been made must be presented to the external forum and must be confirmed by the testimony of two witnesses or by any other legitimate juridical process.'^ For the lawfulness of the interpellations it is re- quired that they be made after the reception of bap- tism, though their validity would not be impaired should they be made before the reception of that sacra- ment. The course generally to be observed is the same as that prescribed for any other juridical process, though it would sufficiently serve the purpose if it were informal, consisting of merely summary proceedings instituted by the converted party's Bishop or his dele- gate." The infidel party must be summoned by the ecclesiastical court by letter in order that in the pres- ence of an authorized judge he may give an oral an- swer to the two questions forming the burden of the interpellations. The letter should not be lacking in the formalities required of an official document. The name of the summoned, of the summoner and of the judge should be inserted in it, and it should give concise in- formation as to the nature of the cause to be handled. The place and date at which the summons was served, and at which the cited person is to appear must be clearly stated. The questions are to be asked in the presence of the judge who represents the converted party and of two sworn witnesses." If a negative an- "CoD. luK. Can., Can. 1122. "■S. C. S. Off., 11 iul., 1886; Wernz, op. cit., n. 703; Gasparri, op. cit., n. 1089; S. C. de Prop. Fide, 21 iul., 1821. " PUTZER, op. cit., n. 129 ; ZiTELLi, op. cit., p. 122 ; Mansella, op. cit., p. 430. 406 The New Church Law on Matrimony. swer is given to the first question, the party should be asked whether he or she consents at least to peaceable cohabitation, which is the minimum requirement the law exacts. After a negative answer to this question the judge should pronounce the sentence which will de- clare the converted party free to choose whether he will contract another marriage or embrace the religious state or remain celibate. If the infidel party consents to peaceable cohabitation, the first marriage retains its force Avithout any necessity of renewing the consent. The adjudicated case should be recorded and after the document has been signed by two witnesses and coun- tersigned by the judge it should be placed in the archives of the Episcopal Curia for future reference, should any occasion require such reference.'* 564. The interpellation once made need not be re- peated, no matter how long a time may elapse before the converted party decides to take another consort, provided the conversion of the other party does not precede such a step. The law concedes to the infidel consort the right to ask for time for deliberation," No one but the Ordi- nary is authorized by law to refuse or to grant such a wish. Charity and justice demand that this right be not denied to the infidel party unless the delay occa- sioned by the granting of the request would seriously jeopardize the faith and the morals of the converted spouse. Should the wish be granted, the case does not become adjudicated until the time allotted to the infidel party for reflection has expired. Should the infidel con- sort neglect to declare his intention before the expira- tion of the allotted time, his neglect would be construed as a tacit unwillingness to subscribe even to the mini- " Cone. Plen. Baltim. Ill, p. 287, H5. "S. C. de Prop. Pide, 27 iul., 1820; S. C. S. Off., 12 iun., 1850. Separation of Consorts. 407 mum requirement, namely, to live peaceably and sine contumelia Creatoris with the baptized spouse.'" 565. The foregoing juridical process may not al- ways be feasible, and may even be impossible, when, for instance, the cited unconverted party declines to re- spond to the summons. In such a case it will suffice that the converted party either in person or by proxy interview the unconverted consort in the presence of two witnesses and ask an answer to the two questions explained above. The answer must be communicated to the Ordinary or his delegate and after the converted spouse and the two witnesses have confirmed it by their oath it will constitute full proof justifying a declaration favoring a continuance of cohabitation or a separation with the privilege of remarrying, as the case may war- rant. The infidel party may declare his intention by letter, provided it is corroborated by trustworthy wit- nesses. If the interpellation is made privately, namely, without any witnesses, and the baptized consort com- municates a negative answer to the external forum, such evidence would influence the ecclesiastical court to decide in favor of the discontinuance of cohabitation but not in favor of remarriage. 566. If the interpellation by virtue of a declaration proceeding from the Holy See may be omitted, or if the infidel, either expressly or tacitly, had given a neg- ative answer, the baptized consort has the right to enter into new wedlock with a Catholic party, unless subse- quently to his baptism he gave to the infidel party just cause for departure." The Roman Pontiff is authorized to dispense from the necessity of interpellating, that is to say, he may permit the converted party to contract a new marriage "Eeg. 25, E. I., in VI° ; c. 10, C. XXVIII, q. 1; S. C. S. Off., instr. (ad Superior. Mission. Peguan.), 11 iun., 1760. •■ Cod. Iur. Can., Can. 1123. 408 The New Church Law on Matrimony. with another person without any warning whatsoever being given to the infidel party.*^ Having the power to dispense from the interpellations in toto, a fortiori has he the power to dispense in parte from them, namely, from the first or the second part of the inter- pellations taken separately.*^ But this extraordinary faculty cannot be resorted to without a just cause. In the former discipline the dispensation had to be re- newed if the converted party had failed to contract marriage within a year after the granting of the dis- pensation.** Since the new Code does not require such a renewal, it would seem that a dispensation once ob- tained would not have to be renewed, but would hold good until used (the same as with the interpellationes viva voce peractae) provided in the interim the infidel party be not converted. 567. The Eoman Pontiff would be justified in granting a dispensation from the interpellation when- ever: (1) The polygynous convert does not recollect which of his infidel wives was the first and legitimate one; *^ (2) The infidel party's place of residence is not known; (3) The infidel party resides in distant regions to which safe access is barred; ** (4) It is feared that the interpellations will be instrumental in causing serious molestations and persecutions to the converted party or to the Christians residing in that locality ; *' (5) There is a serious doubt whether the polygynous ^ Grbqoeius XIII, const. "Populis," 25 ian., 1585 ; Benedictus XIV, const. "In supremo,," 16 ian., 1745; S. C. Inq., 16 aug., 1895; in Acta Sanctae Sedis, vol. XXIX, p. 564 ff. ; S. C. de Prop. Fide, 3 ian., 1777 ; Peije, op. cit., n. 488 ; Gaspabri, op. cit., n. 1094 ff. ; PuTZBJR, op. cit., n. 130. " S. C. Inq., 5 aug., 1759 ; 4 iul., 1855 ; 20 iun., 1866 ; S. C. de Prop. Fide, 26 sept., 1837. " S. C. de Prop. Fide, 26 iun., 1820. '» Paulus III, const. "Altitudo," 1 iun., 1537. " Gregorius XIII, const. "Populis," 25 ian., 1585 ; S. C. Inq., 29 nov., 1882. "' S. C. Inq., 23 nov., 1769. Separation of Consorts. 409^ neophyte has actually given proper matrimonial con- sent to any of his infidel wives; *' (6) The first legiti mate wife is not known and it is difficult to locate her ; *" (7) The infidel consort fails to intimate her intention after the expiration of the stipulated time; (8) There is a well-founded belief that the promises of the infidel party were fictitious. 568. If the Holy See should dispense from the necessity of interpellating, or if the infidel party should respond negatively to both or only the second question, (even if in this hypothesis an affirmative an- swer were given to the first question) the converted party would be free to contract a second marriage. The new Code states the condition on which this free- dom is based, namely, provided the selected consort is a Catholic. It is understood that marriage would be valid and also licit even if a dispensation from the im- pediment of mixed religion or from disparity of wor- ship should have to be obtained, the other consort being a non-Catholic. Such a dispensation, however, is very seldom given for the reason that the second marriage in the case would not be altogether in favo- rem fidei. 569. If after the reception of baptism the converted consort was guilty of an offense justifying the deser- tion by the infidel party, the baptized spouse would not be free to contract a second marriage. Such a just cause of desertion would be adultery committed after baptism. The same moral offense, if committed before baptism, would not be a just cause, for such guilt is washed away by the reception of the sacrament. 570. Dispensation from interpellation has the effect of upholding the validity of the second marriage even ='S. C. Inq., 8 iun., 1836; 18 mail, 1892. »»Pius V, const. "Soinani Pontificis," 2 aug., 1571; S. C. Inq., 22 nov., 1872. 410 The New Church Law on Matrimony. if the subsequent investigation should disclose the fact that the infidel consort was prevented from declaring his or her mind, or even if he had embraced the true faith at the very time the second marriage was con- tracted."" The question might be asked : How can such a juridi- cal effect be attributed to such a dispensation? It is certain that the Pauline Privilege does not in se justify such far-reaching results. In answering the proposed question the authors are divided. Some maintain that such a dispensation is a mere extensive interpretation of the Pauline Privilege which the Eoman Pontiff has the right to give by virtue of his supreme ecclesiastical power. Others contend that he actually dispenses. The two opinions are seemingly in conflict, but if fol- lowed to their final analysis they agree, for both admit the absolute dissolution of the first matrimonial bond and the validity of the second marriage. 571. It is evident that a dispensation from the in- terpellation may be given not only by the Head of the Church but also by his delegate. Needless to say that in both cases the validity of the dispensation depends on the presence of a just cause.'^ The authors are unanimous in maintaining that the supreme ecclesiastical legislator has the power to dis- solve marriages contracted in infidelity but not con- summated either before or after the reception of bap- tism, regardless of whether both consorts have become converts to the faith or only one of them. This right can be claimed on the ground that the bond of such marriages is not firmer than that of a ratified mar- riage. If the Eoman Pontiff may dissolve the mar- riage bond in the case of a non-consummated Christian °° Gkegomus XIII, const. "Populis," 25 ian., 1585 ; Benedictus XIV, const. "In suprema cathoUcae," 16 ian., 1745; Synodus Dioecesana, lib. XIII, cap. XXI, n. 5. " Webnz, op. cit., n. 704. Separation of Consorts. 411 marriage, a fortiori may he dissolve that bond in the proposed case. The authors agree that the Visible Head of the Church would exceed his power should he attempt to dissolve the marriage of two infidels while they remain in infidelity, or after their conversion and subsequent consummation of the marriage. 572. Formerly it was a controverted question whether the Roman Pontiff has the power to dissolve a marriage contracted and consummated in infidelity, but unconsummated after the conversion of both con- sorts or of one of them. Several authors deny him such a right,"^ others again vindicate it."^ Though such marriages are consummated in infidelity, pro- vided no new consummation took place after the con- version of one party or of both of them, they are to be regarded as non-consummated marriages between two baptized persons or between a baptized and an un- baptized individual. But the new law states that the Holy See has a right to dissolve such bonds provided there is a just cause. It cannot be denied that such marriages have actu- ally been dissolved by virtue of special papal decrees, and since so far-reaching a right is not to be sought in the Casus Apostoli it must be concluded that it is de- rived from the plentitude of pontifical power." 573. The converted consort does, not lose the right to contract a new marriage with a Catholic, and may resort to it, even if marital relations with the infidel party were re-established after the reception of bap- tism, provided the infidel party, having changed his "Feije, op. cit, n. 602; Pontius, IX, II; Schmalzgrbbbr, IV, IX, n. 60; VaSQUEZ, De matr. disp., II, cap. VI, n. 58; Benedictus XIV, Quaest. Can.., q. 546; De Synodo Dioeoesana, lib. VI, cap. IV, n. 5; lib. XIII, cap. XXI, n. 4. " Gasparri, op. cit., n. 1108 ; Navareus, ConsU., lib. Ill, De convers. infid., Consil. Ill, n. 13 (Venetiia, 1621) ; Sanchez, lib. II, disp. XVII; St. Alphonsus, lib. VI, n. 956 ; Scavini, III, n. 983 et alii. "Wernz, op. cit., n. 705; Gasparri, op. cit., n. 1109. 412 The New Church Law on Matrimony. or her mind, subsequently deserts the converted party without just cause or does not continue to cohabit peaceably without offering insult to the Creator."^ This law is based on the Pauline Privilege. After the conversion of one of the infidel consorts matri- monial relations should be restored provided the other consort, though remaining in infidelity, promises to cohabit peaceably. This is a conditio sine qua non of the re-establishment of former marital relations. Should the infidel party prove untrue to the promise the converted party's right to another marriage would revive, even if after baptism the marriage contracted in infidelity had again been consummated. In order that such a right may assert itself, it is required that the converted spouse should not have given a just cause for the departure of the infidel consort. The new Code states furthermore that the other party to the second marriage must be a Catholic, but this is not required ad validitatem provided the proper dispensa- tion has been obtained. 574. ■ Things referring to marriage in the Constitu- tions of Paul III "Altitudo" issued on June 1, 1537; of Pius V, "Romani Pontificis," on August 2, 1571; and of Gregory XIII, "Populis," on January 25, 1585, though intended for particular places are to be ex- tended also to other regions provided the circum- stances are the same.^" The three foregoing Constitutions contain the most important legislation regarding the extensive interpre- tion of the Pauline Privilege. In the former discipline it was questionable whether these decrees were to be applied to all places or only to those places for whose special benefit they were issued." The new law dispels »» Cod. Iur. Can., Can. 1124. "Cod. Iur. Can., Can. 1125. " Wernz, op. cit., n. 705. Separation of Consorts. 413 all doubt on this subject by declaring that they are not conditioned on territory but only on circumstances. Should the conditions which they relate be present in all parts of the world, the law they enforce would be operative everywhere. 575. The Constitution of Paul III,"' among other things, says: Whereas the inhabitants of the Western and the Southern Indies, though unacquainted with divine law, have rooted out from their hearts and minds the errors that heretofore guided them and wish to embrace the truth and the unity of the Catholic Church; and, whereas, they desire and intend to live according to the teachings of that same Church, the following is decreed by us as regards their marriages : Those who according to their custom have practiced polygyny before their conversion and do not recollect who their first Avife was, may select after their conver- sion to the faith one of their former wives and accord- ing to the law enter with her into marriage. Those who remember whom they have married first should re- tain her and dismiss all others. Furthermore, until the Holy See ordains otherwise, a relationship in the third degree of consanguinity or affinity should not be I'e- garded as an obstacle to their marriage. 576. The Constitution of Pius V is more compre- hensive. Because, it says, the Indians, while they re- main in infidelity, practice polygyny and repudiate their wives even for the most trifling reasons, it was permitted by the missionaries that those who receive baptism may remain with the wife who simultaneously becomes a convert with the husband. Since it happens very frequently that such a wife is not always the one they have married first, the Bishops and the priests Avere tormented by grave scruples, thinking that no »» This Constitution as well as the other two that follow can be found in the supplement of the new Code under Documenta VI, VII, VIII. 414 The New Church Law on Matrimony. valid marriage was contracted under the circumstances. Since it would be most cruel to separate the Indians from the wives who have become converted with them, and since it would be a difficult task to locate the first wife, therefore we decree, by the plenitude of our apos- tolic power, that the Indians who were thus baptized or are to be baptized in the future may remain with the wives who have become baptized or shall become bap- tized with them, and should dismiss all the others. By virtue of the tenor of this letter we declare such mar- riages valid. 577. The Constitution of Gregory XIII is the most extensive of the three. It is of frequent occurrence, he says, that many infidels of both sexes, but especially men, after having contracted a marriage according to pagan rites in Angola, Ethiopia, Brazil or some other part of the Indies, are captured by their enemies and transferred to regions very distant from their country and their wives. After their conversion the long inter- vening distance renders impossible the interpellation of their former infidel consorts as to whether they are willing to cohabit with them sine contumelia Creatoris. Whereas marriages contracted by infidels are not so ratified that they could not be dissolved if necessity so demands {ut necessitate suadente dissolvi non possint) we give permission to the Ordinaries, the parish priests, and the missionaries of the Society of Jesus to dispense the converted inhabitants of those places so that if they should had married before their conver- sion they may solemnize marriage {in facie Ecclesiae) with any Christian, even if he be of another rite, with- out requiring the consent of their living consort, and without being constrained to await her answer. We furthermore decree that after they have consummated such marriages they may remain in them licitly, pro- vided it has been ascertained, at least by a summary Separation of Consorts. 415 extra-judicial process, that the absent consort could not be legitimately warned or that she failed to inti- mate her will within the specified time. Such mar- riages should never be rescinded but must be regarded as valid and firm and the children born of them as legitimate even if subsequently it should be learned that the first infidel consorts were justly prevented frpm declaring their will or at the time of the con- tracted marriage had already embraced the true faith. The decree of Gregory XIII shows clearly that the Eoman Pontiff exercised a power which far exceeds the limits of the Pauline Privilege, and which presup- poses the objective dissolution of the matrimonial bond begotten by ratified marriages consummated before conversion but not after. 578. As regards the automatic dissolution of the marriage bond by virtue of Pauline Privilege the new law says : The bond of the first wedlock entered into in infidelity is dissolved only at the time when the eon- verted party actually contracts a new and valid mar- riage.'^ This canon does not introduce any new teaching. It has always been believed that the bond contracted in infidelity is not dissolved either by the reception of baptism or by mutual consent, or by the refusal of the infidel party to consent to peaceable cohabitation. It is the second marriage which causes an absolute sever- ance of the bond of the first and sets free the infidel consort."" It must be borne in mind that such an ef- fect follows only upon a validly contracted second mar- riage, which in turn presupposes that the converted party has the right to enter into another wedlock.'" •'Cod. Iue. Can., Can. 1126. ="■ Benedictus XIV, ep. "Postremo mense," 28 febr., 1747, JLrVTT; const. "Apostolici missionary,," 16 sept., 1747. ""S. C. S. Off. (Cochinchin.), 1 aupf., 1759, ad 2, 5; (Natal), 11 iul, 1866; S. C. C, Florentim, 27 iul., 1726, 29 mart., 1727. 416 The New Church Law on Matrimony. 579. In doubtful matters the privilege of the faith is favored by the law.'"^ By the privilege of the faith to which the foregoing canon refers is to be understood the freedom of the converted party to enter into another marriage. In all doubtful matters connected with the Pauline Privi- lege the convert is to be favored. If the validity of the first marriage is questioned, or if it is doubtful whether the conditions prescribed for the application of the Pauline Privilege are present, the converted consort should not be prevented from contracting another mar- riage. The same is to be said when a doubt is enter- tained as to whether the act committed by the con- verted consort after the reception of baptism was a sufficient or an insufficient cause for the departure of the unbaptized consort.^"^ //. Separation from Bed, Board and Dwelling. (Canon 1128— Canon 1132.) 580. The first chapter of this article treated of the absolute indissolubility of a ratified and consummated marriage as well as of the conditions which justify the absolute dissolution of the matrimonial bond con- tracted in infidelity. This article does not concern itself with the vinculum, it merely states the causes which justify the separation of the husband from the wife, or vice versa, without the matrimonial bond being broken. The community of bed, board and dwelling place is required by the very nature of marriage, but, since it pertains only to the integrity of marriage and not di- rectly ad substantiam, the consorts are excused from it "^ Cod. Iub. Can., Can. 1127. '"' S. C. S. Off., instr. (ad Ep. S. Alberti), 9 dee., 1874, n. 13, 18 maii, 1892, ad 1, 2; 19 apr., 1899; inatr. (ad Archiep. Quebeeen.), 16 sept., 1824, ad 1. Separation of Consorts. 417 whenever there is a gust cause.^" This has been the discipline of the Church from the time of the Apostles."' Such a just cause very often arises by force of circumstances under which the husband or the wife lives and to which they both become reconciled. In other cases certain reasons justify the violent sev- erance of the bond which united the two contracting parties in a community of bed, board, and dwelling place, the matrimonial vinculum continuing undis- solved. The Church has always claimed the right to grant to her members a separation from bed and board whenever there is a just cause ; and when her practice was attacked by the self-constituted pseudo-reformers she has anathematized them in the Council of Trent."" 581. The just causes of separation may be twofold, namely, intrinsic and extrinsic to marriage. The new Code legislating on the former says: On account of adultery committed by one consort, the other consort, though the bond remains, has the right to discontinue the community of life even permanently, unless he con- sented to the crime or was its contributory cause, or condoned it expressly or tacitly, or committed the same crime himself. By a tacit condonation is understood a spontaneous intercourse with marital affection that the innocent consort had with the other after he became certain of the crime of adultery. The tacit condonation is presumed unless within six months he had banished or deserted the adulterous consort or made a legitimate accusation.^"^ Adultery taken by itself has always been considered a just cause for separation. It intrinsically antagon- "" Cod. Iur. Can., Can. 1128. '"Matt. V, 31, 32; XIX, 9; I Cor. VII, 11, 12. '°° Sessio XXIV, De sacramento matrimonii, can. VIII ; Eugenius IV (in Cone. Florent.), const. "Exultate Deo," 27 nov., 1439, ^16; Bene- DICTUS XIV, ep. "Nuper ad nos," 16 mart., 1743. ""Cod. Iub. Can., Can. 1129. 418 The New Church Law on Matrimony. izes the unity of marriage, and it is the only cause mentioned expressly in the Sacred Scripture."' The Gratian collection contains several ecclesiastical enact- nients handed down from the early ages of Christianity which forbid the Christian consort even to cohabit with the spouse guilty of adultery."^ The right to separa- tion belongs to the innocent consort by virtue of divine, natural "" and positive law/" 582, In order that adultery may be a just cause for separation, it must be : 1. Formal, not merely material. The consort must be guilty of adultery in fact."^ Should he erroneously believe that his relationship was with someone else while in reality it was with his own wife, the act, though sinful, would not constitute a sufficient cause for separation. 2. Committed with full consent of the will. There- fore adultery to which one was coerced by violence or fear, would not suffice."' The same is to be said should the act be committed in the state of unconsciousness or semi-consciousness, provided the guilty party did not resort to such a state for the express purpose of being exonerated from the consequences which such an act entails. 3. Morally certain. A mere circumstantial evidence would not suffice to pronounce the consort guilty of adultery unless several other indications should point to the moral offense and should justify the presump- tion that it was actually committed."* ^"Matt. V, 19. ""C. 4, C. XXX, q. 5; e. 2, C. XXXII, q. 1; c. 18, 19, 21, 22, C. XXXII, q. 5; c. 1, C. XXXII, q. 6; c. 1-8, 10, 17, C. XXXII, q. 7. "° Sanchez, op. cit., lib. X, disp. Ill, n. 4 ; Webnz, op. cit., n. 707. "' C. 9, X, de sponsalibus et matrvmoniis, IV, 1 ; c. 19, X, de Conner- sione coniugatorum, III, 32. ^'^ 0. 6, X, de eo qui cognovit consanguineam uxoris suae vel sponsae, IV, 13. '"C, 3-6, C. XXXII, q. 5. "* C. 12, X, de praesumptionibus, II, 23; Noldin, vol. Ill, n. 666. Separation of Consorts. 419 4. Consummated, and not merely begun, namely, the union must be such that it is in itself fitted for pro- creation."^ In doubt such a consummation may be pre- sumed. 5. Against the will of the consort. In other Avords, the other spouse should not give his tacit consent by neglecting to take some means of preventing the crime, when he is in a position easily to do so. Therefore if the other consort either consented to the crime, or was its instrumental cause, or its instigator, he would for- feit the right to separation."* 6. One-sided, not counteracted by a similar guilt of the other consort. If the guilt of one consort was known to the other, and this other committed a similar offense in secret, the party whose crime is secret would have no right to separation in the eyes of the internal forum, though the external forum would grant such a right merely on the ground of lack of information.^" 7. Uncondoned, namely, neither an express nor a tacit act on the part of the innocent consort should in- dicate that he has pardoned the crime and is recon- ciled. If the innocent spouse, notwithstanding the fact that the moral offense of the guilty consort was known to her, continues to cohabit with him in marital rela- tions, her conduct would be interpreted as a tacit con- donation. A tacit forgiveness is presumed if the inno- cent spouse refrains from dismissing or abandoning the guilty consort, or from duly denouncing him within six months after the crime became known to her."' 583. The common opinion, says Gasparri, permits the innocent consort to separate from her spouse even '"Gaspakri, op. cit., n. 1112; Weenz, op. cit., n. 707. "° C. 6, X, de eo qui cognovit consanguineam uxoris suae vel sponsac, IV, 13. ""C. 6, 7, X, de adulteriis et stupro, V, 16; Morino, Theologia Moralis, vol. II, n. 812 (Neapoli, 1912) ; St. Alphonsus, lib. VI, u. 966. '"Sanchez, lib. X, disp. IV, n. 19; Schmalzgruber, li. t., n. 108; Eeipfenstul, ft. *., n. 71. 420 The New Church Law on Matrimony. for the crime of sodomy or bestiality."' While it must be admitted that such an act implies divisionem carnis cum alio, it is not adultery in the strict sense of the term. Therefore, since the new law is to be interpreted strictly, and since it makes no specific mention of them, it would seem that such an opinion can no longer be advocated. 584. The innocent consort, after he has departed lawfully, whether as the result of a judge's sentence or by his own authority, is never again bound to admit the adulterous consort to a community of life, though he may do so ; or he may recall her unless with his con- sent she embraced a state incompatible with mar- riage."" The innocent consort lawfully separated is never obliged ex iustitia to re-establish conjugal cohabita- tion with the adulterous spouse. Her right, however, to recall him remains intact, and sometimes ex caritate, or in order to avert some serious public danger, she might be advised to tafee back the reformed consort. Moreover, such an obligation could even be imposed on her if the crime of the guilty consort was counter- balanced by her commission of a similar moral of- fense."'^ The right of the innocent consort to recall the guilty one to cohabitation would be forfeited if with her consent the adulterous spouse had embraced the religious state either by the reception of Holy Orders or by solemn religious profession.^^^ 585. Adultery is the only intrinsic cause justifying a perpetual separation. For a temporary separation a toro, mensa et cohabitatione even extrinsic causes would suffice. Of these the new Code says : If one of "" CoNsci, De separatione tori comugalis, II, XIII, n. 25 ; Sanchez, loc. cit., n. 3 ff.; Webnz, op. cit., n. 708; Gaspaeei, op. cit., n. 1112. ""Cod. Iur. Can., Can. 1130. "' C. 3, X, de adulteriis et stupro, V, 16. "'' Gaspakri, op. cit., n. 1114 ; St. Alphonsus, lib. VI, n. 967. Separation of Consorts. 421 the consorts affiliates himself with a non-Cathoiic sect ; if he rears the child in a non-Catholic spirit; if he leads a criminal and scandalous life; if he occasions grave danger to the soul or body of the other consort ; if his cruelty renders a community of life very diffi- cult; these and other causes of a similar nature are just causes for the departure of the other spouse by the authority of the Ordinary of the place, or even by pri- vate authority, provided the causes are evident and there is danger in delay. In all these cases, the cause of separation having ceased, the community of life should be restored. If the separation was declared by the Ordinary for a certain or indefinite time the inno- cent consort is not obliged to conjugal relations, ex- cept by a decree of the Ordinary, or after the expira- tion of the specified time."^ No serious difficulty will be experienced as regards the foregoing causes of separation. It must be borne in mind that these causes are not taxative propositae and there are many others that would justify the same course. The law makes a wise provision by referring the aggrieved consort to the Ordinary of the place, wlio is to decide whether his grievances would justify a sep- aration. On his own private authority the offended party may effect such a separation, but only on condi- ,tion that the cause is self-evident, and that there is danger in delaying until the case is laid before the Ordinary. Even in such cases the innocent party, after having withdrawn from the guilty consort, should submit his complaints to the ecclesiastical superior in order to have his act officially ratified by the Church. 586. The apostasy of which the foregoing canon speaks must consist in a public enrollment of the con- sort in a heretical or schismatic or infidel sect. Apos- tasy must not be confounded with affiliation with a f or- "'COD. lUR. Can., Can. 1131. 422 The New Church Law on Matrimony. bidden society or with indifference displayed toward one's faith. The non-Catholic education of the off- spring must be actual and continued. If the child were at liberty to receive both Catholic and non-Catholic education, no just cause for separation would be af- forded. Criminal and scandalous living, whether pub- lic or known only to some of the immediate members of the family, would also be a sufficient cause for sepa- ration. Such living would be verified in case of sodomy, or bestiality, or addiction to acts redounding to the disgrace of the family, or occasioning serious danger of civil penalty. By grave spiritual danger is understood an endeavor on the part of the consort to induce the other spouse to grave sin, like adultery, onanism, abuse of the marriage rights, theft, etc. To the grave corporal danger would contribute causes like fatal contagious disease, insanity, etc. The term cruel treatment could be applied to very frequent and seri- ous dissensions, and to the avarice of the husband denying to the wife the necessary victuals or remedies in time of sickness.*^* To these could be added the in- tolerable prodigality of the consort, an uncalled for desertion, avidity of the husband menacing the private fortune of the wife, etc. Whatever may be the nature of the cause for separation the consorts should not seek it at the hands of the civil court, without having first consulted the proper ecclesiastical authority.'" The causes are not to be judged objectively only. The subjective disposition of the aggrieved consort must also be taken into consideration."" 587. It must be noted that by mutual consent the "' Gasparbi, op. cit., n. 1117 ff.; CoNSCi, op. cit., II, V, n. 1; San- chez, lib. X, disp. XVII; Beippenstbl, IV, VIII, n. 81; St. Al- PHONSUS, lib. VI, n. 971 ; Wernz, op. cit., n. 713 ; Breitenbach, Die. Trennung von Tiseh und Bett, pp. 26, 27 (Luzern, 1908). "' Cone. Plen. Baltimorense , III, n. 126. «N0LDIN, op. cit., vol. Ill, n. 669. Separation of Consorts. 423 consorts are at liberty to separate for a time for any just cause, or even for no cause whatever, provided the danger of incontinence is absent. 588. After a separation has been effected on ac- count of the guilt of one of the consorts, the children are to be reared by the innocent spouse, or, should one of the parties be a non-Catholic, by the Catholic con- sort, unless in both cases for the welfare of the chil- dren the Bishop ordains otherwise, having always at heart their Catholic education."' If the presence of a cause for separation is estab- lished with certainty in a particular instance, the inno- cent consort is always to be entrusted with the care of rearing the children. In case the other consort is non- Catholic, the Catholic spouse, notwithstanding his guilt, should get the preference as regards supervision over the offspring, for it is naturally supposed that their rearing in the faith will thus be in safer hands. Should this supposition fall before a contrary proba- bility, the Ordinary may rule that the children be com- mitted to the solicitude of the innocent non- Catholic spouse. In taking this step the Bishop must be actu- ated exclusively by the spiritual and temporal welfare of the children, always permitting the former to pre- dominate."' "'Cod. lun. Can., Can. 1132. "'St. Alphonsus, lib. VI, n. 976; Sanchez, lib. Ill, disp. XX; Gaspaebi, op. cit., n. 1119; Weenz, op. cit.. n. 714; Acta Sanntae Sedix, vol. II, p. 138 ; c. 2, X, de conversione infidelium, III, 33 ; Benedictus XIV, const. "Prohe," 15 dec, 1751, $18. CHAPTER XIII. The Validation of Marriage. I. Simple Validation. (Canon 1133— Canon 1137.) 589. To validate marriage is equivalent to contract- ing it anew. The new law classifies the invalid mar- riages into three categories, namely, according as their invalidity resulted: (1) From a diriment impediment; (2) From lack of consent; or (3) From lack of the proper form. The effects of a validated marriage when correlated with illegitimate offspring have al- ready been explained in another part of this book.^ 1. Marriage Invalid on Account of Impediment. For the validation of a marriage whose invalidity is owing to the presence of a diriment impediment, it is required that the impediment cease or be dispensed from, and that the consent be renewed at least by the spouse who is aware of the impediment. The ecclesi- astical law requires the renewal of consent for validity, notwithstanding the fact that in the beginning both consorts have given consent and that their consent was not revoked subsequently.^ Some impediments cease without the necessity of having recourse to a dispensation, as, for instance, the impediment of age, of abduction, of ligamen, of dis- ' See this work, n. 540 fP. ^COD. lUR. Can., Can. 1133. 424 Validation of Marriage. 425 parity of worship, etc. Other impediments require the intervention of an authorized dispenser, such as that of affinity, consanguinity, spiritual relationship, etc. It is immaterial to which of the two classes of impediments the marriage owes it invalidity; in both hypotheses, besides requiring that the impediment either cease automatically or be lifted, the ecclesiasti- cal law prescribes also a renewal of consent as a conditio sine qua non for the validation of the mar- riage. 590. This renewal of consent must be a new act of the will consenting to the marriage which, it has been discovered, was invalid from the very beginning.^ The required renewal of consent is not imposed by virtue of natural law, for if it were so imposed the Church could not validate marriages by means of a sanatio in radice, as this act implies a dispensation from the necessity of renewing the consent. Ordi- narily, therefore, the ecclesiastical law requires that the parties whose marriage is invalid on account of an impediment should not only be freed from the impedi- ment (either by its automatic cessation or by dispensa- tion), but should also renew their consent, thus to vali- date their marriage by a new act of the will.* This duty will devolve on them even if their original con- sent perseveres. By insisting that the renewal of eon- sent must be a "novus voluntatis actus" the new law implicitly presupposes that the nullity of the first con- sent is known to one party or to both. 591. Should the impediment be public, the consent is to be renewed by both parties in the form prescribed by law. Should it be occult but know to both parties, it will suffice if both renew their consent privately and ■ Cod. Iur. Can., Can. 1134. 'S. C. S. Off., 8 iun., 1836; (Cochinchin. Occident.), 12 lun., 1850, ad 2. 426 The New Church Law on Matrimony. secretly. Should it be occult alid unknown to one party, it will suffice if only the consort who is aware of the impediment renew his or her consent privately and secretly, provided the other party's consent perseveres.^ ' As regards the first part no doubt can be enter- tained. A marriage whose nullity is of public knowl- edge requires a public validation for various reasons, such as the avoidance of scandal, the protection of the good name of the parties and of the offspring, and the sanctity of the sacrament. Such validation implies the employment of the proper form of marriage prescribed by canon 1094, and explained under number 452 and following. The indispensable condition of such form is the presence of an authorized priest or the Ordinary of the place and two witnesses, A marriage thus vali- dated will be accepted by both forums. 592. Since the public validation of marriage is al- ways connected with more or less inconvenience and very frequently the good name of the reputed consorts and their offspring is at stake, the Church permits a private and secret validation provided the impediment is occult, namely, no one but the contracting parties having any knowledge of it. The words "privatim et secrete" relieve the consorts of the obligation of re- newing their consent by having recourse to the form mentioned above. Even this requirement is modified should the pres- ence of an impediment be knoAvn only to one of the reputed consorts. In that hypothesis, should it be ad- visable to leave the other spouse in good faith, as is generally the case, the renewal of consent need not be reciprocal. Such was the principle on which the Sa- cred Penitentiaria has acted for a long time before the promulgation of the new Code. This mode of renew- »C0D. luR. Can., Can. 1135. Validation of Marriage. 427 ing consent presupposes that the consent of the other party, who is ignorant of the impediment, perseveres. The authors suggest various ways to facilitate the re- newal of consent under such circumstances." These ways are very seldom practicable for they are liable to arouse suspicion in the unsuspecting consort. Therefore the new law legislates wisely when it says : "Satis est ut sola pars impedimenti conscia consensum privatim et secreto renovet." Such a private and secret renewal of consent would be effected by the conjugal act performed with matrimonial intent, with the consort whose consent perseveres.'^ 2. Marriage Invalid for Want of Consent. 593. A marriage whose invalidity is owing to want of consent is validated if the party who has failed to consent gives his consent, provided the consent given by the other party perseveres. If the want of consent was merely internal, it suffices that the party who did not consent should consent internally. If the want of consent was external also, it is required that the con- sent be manifested externally also, either according to the form prescribed by law, if the want of consent was public, or in some other private or secret way, if it was occult.' The foregoing canon treats of the hypothesis from which want of consent may result. Consent, being the essence of marriage, begets the marriage contract and without it no contract can exist, for no power can supply a consent that is wanting. For this reason the law of the Church insists that a marriage null for want of consent cannot be validated unless the party who " Wbrnz, op. cit., n. 651 ; Noldin, vol. Ill, n. 659 ; De Smet, op. cit., n. 410. ' C. 7, X, de eo, qui duxit in matrimonium quam poUuit per adul- terivm, IV, 7; S. C. S. Off., 12 ian., 1769, II, 5. 'Cod. Iur. Can., Can. 1136. 428 The New Church Law on Matrimony. withheld his consent at the time the marriage took place should ratify it subsequently by actually and freely consenting to it." Until this is done the mar- riage is invalid, and even if it should be done the mar- riage would be null unless the other party's consent perseveres/" If the consent was given only externally, as, for instance, on account of fear or violence, or fictitiously, or erroneously, in all these suppositions the marriage would be invalid for want of internal consent. In that case the validation of marriage would require an internal renewal of consent, on the part of the consort who had failed to consent internally at the time the marriage was solemnized. If the want of in- ternal consent can be traced to both parties, then both have to give such a consent. If the proper consent given by one party ah initio perseveres unrevoked and the other party consented only externally, the marriage cannot be validated, unless the latter supplies the necessary internal consent as a minimum requirement. In this case the new law does not demand that the party who is in good faith should be informed of the nullity of marriage." It is to be noted that the consent is not regarded as withheld unless such an intention is manifested by a positive act of the will. An interpretative withholding of consent has no force in the eyes of the ecclesiastical tribunal.^^ 594. Should the want of consent be external its re- newal will depend on whether it is a public or an occult fact. In the former ease the consent cannot be sup- plied except by resorting to the prescribed form of 'Wernz, op. cit., n. 648; Gasparbi, op. cit., n. 1145. "' C. 2, 4, X, de conmgio servorum, IV, 9 ; S. G. S. Off., instr. (ad Vie. Ap. Oeeaniae), 6 apr., 1843; S. C. C, Vigilien., 23 iun., 13 iul., 22 sept., 1725. " C. 21, 30, X, de sponsalibus et matrimoniis, IV, 1 ; i'ErjE, op. cit., n. 760; Gaspabei, op. cit., n. 1142. " NOLDIN, op. cit., vol. Ill, n. 657. Validation of Marriage. 429 marriage. If the want of external consent is occult it may be supplied privately and secretly regardless of whether both or only one party has failed to give the proper consent." 3. Marriages Invalid for Want of Proper Form. 595. A marriage whose nullity is owing to the lack of proper form, in order to become valid, must be con- tracted by means of the prescribed form." The general law contained in the foregoing canon is not to be interpreted in the sense that it brooks no ex- ceptions. The requirement is only relatively neces- sary, for in certain instances the Church dispenses from the necessity of having recourse to the proper form. The insistence on this form can be gathered from the various decisions of the Holy See.^'' If the lack of proper consent is a public fact the renewal of consent must also be public, namely, it must take place in the presence of the authorized priest or the Ordinary of the place and two witnesses. Should it be an occult fact, the same mode should be used, but the renewal of consent may take place secretly. In the former in- stance the proclamation of banns should precede such a marriage, unless for a just cause a dispensation be obtained. Such a dispensation should always be granted if the fact of the lack of the proper form is occult. Not infrequently it happens that the renewal of con- sent by any of the preceding modes is either imprac- ticable or even impossible. The sanatio in radice pro- vides for such cases, to whose consideration will be de- voted the pages that follow. "S. C. S. Oflf., instr. (ad Vie. Ap. Oeeaniao), 6 apr., 1843. '*C0D. lUR. Can., Can. 1137. " S. C. C, 2 aug., 1907 ; Poloniae, 13 nov., 1638 ; Secret. Status, instr. 27 mart., 1830. 430 The New Church Law on Matrimony. II. Sanatio in Radice. 596. The sanatio of marriage in radice is its valida- tion, carrying with it, besides dispensation from, or cessation of, an impediment, dispensation from the law requiring a renewal of consent, and (by a fiction of the law) a retroaction to the past, as regards canonical effects. The validation takes place from the moment the favor is granted, the retroaction goes back to the very beginning of the marriage, unless the law ex- pressly ordains otherwise. Dispensation from the law requiring the renewal of consent may be granted whether only one of the parties or both are unaware of the impediment.^' This mode of validating a marriage was resorted to first by Boniface VIII (1301), and the principle on which such a validation is founded was clearly defined by Clement V." Gregory XIII, Clement XI and Clem- ent XII, made use of the sanatio in radice and toward the end of the eighteenth century such favors were ex- tended not only to individuals but even to whole dio- ceses and extensive territories.^* 1. The Nature of a Sanatio in Radice. 597. The main difference between a simple dis- pensation and a sanatio in radice consists in the mode whereby a marriage which is invalid ab initio is vali- dated. In the first instance the renewal of consent is necessary. Whether such renewal should be required of both parties or only of one, whether it should be pri- vate or public, external or internal, will depend en- tirely on whether only one or both parties withheld their consent at the time the marriage was celebrated, whether the withholding of their consent was a public " Cod. Iur. Can., Can. 1138. " C. uu. de immunitate ecclesianim, III, 17, in Clem. " Wernz, op. cit., n. 654 ; Peebonb, op. cit., vol. II, p. 167 £E. Validation of Marriage. 431 or an occult act, and whether their consent was given internally but not externally, or vice versa. A renewal of consent prescribed for only one con- sort presupposes the continuance of the other party's consent. On the strength of this continued consent the marriage can be validated by means of sanatio in radice without the renewal of such unrevoked consent. In the case of a simple dispensation the Church does not go any further than to remove the obstacle which Stands in the way of the validity of the marriage. In the second instance besides lifting the impediment the Church au- tomatically confirms the continued consent, endows it with a retroactive force, and invests it with such jurid- ical and canonical effects that the vitiated acts which it begot formerly become ipso facto ratified. 598. By the concession of a sanatio in radice the marriage becomes valid ex nunc, namely, from the mo- ment the grace is conceded. The canonical effects of such validation begin ex tunc, namely, with the time the marriage was contracted. The most important of these effects is the legitimation of offspring. All chil- dren are ipso facto legitimated except those stigma- tized as adulterine and sacrilegious." These effects are the natural consequences of a sanatio in radice unless a provision in the rescript ordains otherwise in particular instances. Every sanatio in radice carries with it a dispensa- tion from the necessity of renewing the consent, for such necessity is prescribed only by ecclesiastical and not by natural law. The sanatio in radice, however, and the renewal of consent are not mutually exclusive and the Church very frequently gives the former with an insistence on the latter as a matter of penalty, in the case, for instance, where one or both parties were in bad faith when they attempted marriage. Should " See this work, n. 173. 432 The New Church Law on Matrimony. such a condition be contained in the rescript its fulfill- ment would be required ad validitatem.^" 599. Dispensation from the renewal of consent may be given without the knowledge of both or of either of the contracting parties." Should such a dispensa- tion be granted the objective validity of the marriage would depend on the answer one could give to the ques- tion : Does the presumed or alleged consent of the two consorts actually persevere or not ? 3. Conditions Under Which a Sanatio in Radice is Granted. 600. Any marriage entered into by both parties with a consent naturally sufficient but juridically inef- fective on account of a diriment impediment of ecclesi- astical law or on account of the want of the legitimate form, may be validated in the root provided the consent perseveres. A marriage contracted with an impedi- ment of natural or divine law, even if later the impedi- ment should have ceased, the Church does not validate in radice, not even from the moment when the impedi- ment disappeared.'''' On the strength of this canon the conditions under which a sanatio in radice is possible are : 1. A consent naturally sufficient but juridically in- effective. This consent, as has already been explained, must be free, deliberate, internal, personal, outwardly manifested, legitimate, absolute, and mutually simul- taneous.^'' Should the consent be lacking in any char- acteristics necessary to the validity of marriage, no sanatio in radice should be resorted to. The sanatio " NoLDiN, vol. Ill, n. 662 ; Benedictus XIV, De Synodo Bioecesama, lib. XIII, cap. XXI, n. 7; Lehmkuhl, op. cit., vol. II, n. 828. ="S. C. S. Off. (laponiae), 11 mart., 1868; instr. (ad Ep. S. Adal- berti), 9 dec, 1874; 22 aug., 1906, ad 4; Secret. Status, instr. 27 mart., 1830. ''^CoD. lUR. Can., Can. 1139. " See this work, n. 397. Validation of Marriage. 433 in radice could be applied if both parties give their consent in good faith and with the firm conviction that their marriage is valid; or give the proper consent even if they were morally certain of the invalidity of their marriage. The new law distinctly states that the knowledge of the objective invalidity of a marriage can co-exist with the giving of a consent naturally sufficient to constitute marriage." The possibility of a sanatio in radice would therefore depend exclusively on whether a natural marital consent was actually given and continues unrevoked, or whether it was not given. A sanatio in radice would be given even in case one of the consorts cannot be induced to renew his consent but there is no reason to fear that his consent was withheld ab initio or, if given at that time, was after- wards revoked.^^ 2. The lack of effectiveness of the consent must be due to the presence of a diriment impediment of ec- clesiastical law, or to the non-compliance with the proper form of marriage. Any impediment of ecclesi- astical origin can be lifted by a sanatio in radice, and in case the proper form was disregarded the same dis- pensation can supply it. Marriages null on account of an impediment whose nature or origin is a matter of controversy cannot be validated by a sanatio in radice, such would be the invalid marriage of persons related beyond the first degree of lineal or in the first degree of collateral consanguinity. 3. Another requisite without which the marriage cannot be validated in radice is the presumed persever- ance of the consent given at the time the invalid mar- riage was contracted.^" Under ordinary circumstances '*C0D. lUR. Can., Can. 1085. "PiajE, op. cit., n. 767. ""S. C. S. Off. (laponiae), 11 mart., 1868; 12 apr., 1899; 26 aug., 1906, ad 3; S. C. de Prop. Fide, Utt. (ad Coadiut. Superior. Mission, in ora Coromandel), 5 iul., 1788. 434 The New Church Law on Matrimony. the continuance of such consent is presumed {prae- sumptione iuris tantum). Its revocation would have to result from a positive act of the will, an interpretative act of the will would not suffice. Actions from which the discontinuance of the consent could legitimately be inferred are, a civil divorce, a separatio a toro et mensa, etc. It is not required that the consent origi- nally given should persevere morally; its virtual con- tinuance suffices. Such continuance would be implied in continued cohabitation under the same roof and in conjugal relations. The invalid marriage of de- ceased persons can be validated by means of sanatio in radice but only secundum quid, namely, it may be en- dowed with juridical effects, such as the legitimation of children." Such a validation presupposes the vir- tual perseverance of the consent to the moment of death. If it had been revoked before that time the sanatio in radice would be void of all objective jurid- ical value. 4. Sanatio in radice is not applied to invalid mar- riages attempted by parties laboring under an impedi- ment of natural or divine law, no matter whether they were in good or in bad faith. The Church does not validate such marriages, not even from the moment the impediment has ceased.^^ As regards the first proposition it is clear that the Church has not the power to validate a marriage whose invalidity results from a higher law, like that of nat- ural or divine law. After the impediment has ceased, provided the consent of the parties persevered, strictly speaking the Church could apply a sanatio in radice but only back to the time at which the impediment dis- appeared. As a matter of fact the Church has actually ^'Wernz, op. cit., n. 656; Gaspabri, op. cit., n. 1151; Giovine, op. cit, p. 602. "S. C. S. Off., 8 mart., 1900; 2 mart., 1904. Validation of Marriage. 435 done this in a case in which the impediment of ligamen (which was the cause of the nullity of the marriage) came to an end " after the death of the first husband. Such a dispensation would be a sanatio in radice im- propria or relativa, for the period preceding the cessa- tion of the impediment would in no way be affected by it, nor would the children born during that time be legitimated. In this case the words sanatio ex tunc are to be applied to the moment the impediment of natural or divine law has ceased. Formerly a sanatio under such circumstances was very seldom granted and the new law inaugurated a ruling which intimates that the Church does not intend to make use of her power to validate in this way a marriage entered into with such an impediment. Should only an ecclesiastical im- pediment interfere with the validity of the marriage at the time it was attempted, and should the impediment of perpetual and incurable impotency arise subse- quently to the birth of a child, such a marriage could be validated but only secundum quid, namely, as re- gards its effects (legitimation of children) up to the inception of the impediment of natural law. Such sanatio would legitimate the offspring but would fail to validate the marriage for the future, because the contracting parties were laboring under an inability to contract it. Feije advocates the absolute validation even of such future marriage but forbids its use.'" This case must not be confounded with another in which a mere concubinage on which the impediment of impotency supervened was followed by an attempted marriage. Under such circumstances the remedy of a sanatio in radice could not be applied because the marital and conjugal consent, given in the invalid mar- riage, was preceded by an impediment of natural law.^^ =° S. Poenitentiaria, 25 apr., 1890. "° Op. cit., n. 769 ; Sabetti-Barrett, n. 932. "S. C. S. Off., 18 mart., 1900. 436 The New Church Law on Matrimony. 5. The authors generally demand a proportionately grave cause for a recourse to sanatio in radice. They hold that in the absence of such grave cause recourse to sanatio in radice would be inexcusable. Such grave causes are: (1) If one consort cannot be induced to renew his consent and yet wishes to live in marriage ; (2) If only one spouse is conscious of the impediment whose existence could not be revealed to the other without grave inconvenience; (3) If both parties are in good faith and cannot be apprised of the nullity of their marriage; (4) If a number of marriages is to be validated and recourse to the sanatio in radice would be the most practical method.^^ 601. Should one or both parties fail to give the con- sent the marriage cannot be validated in radice, whether the consent was wanting from the very begin- ning, or whether it was given in the beginning but re- voked subsequently. Should the consent be wanting in the beginning but given later, the marriage can be vali- dated in radice from the moment the consent was given.*^ If the consent is given at the beginning of an at- tempted marriage and it perseveres, the marriage can be validated in radice. If at the beginning the consent was wanting but it was given later, the marriage can be validated from the tiiiie the consent was given. If it was given at the beginning but subsequently revoked, the validation of marriage is an impos- sibility. If the marriage was attempted and from the very beginning an impediment of natural or divine law interfered with its validity, it cannot be validated in radice, except from the time the impediment has ceased. But the Church does not intend to extend the favor of a sanatio under such circumstances. Should "NOLDiN, vol. Ill, n. 663; Webjstz, op. cit, n. 659, note 35. " Cod. Iur. Can., Can. 1140. Validation of Marriage. 437 such an impediment arise after a certain period of co- habitation with matrimonial consent, the marriage could be validated as regards its effects up to the end of that period. If a marriage was null ab initio (on account of an impediment of ecclesiastical law) and then an impediment of natural or divine law super- vened, a convalidatio matrimonii secundum quid can be effected up to the period at which the impediment of natural law arose. This kind of validation would have the effect of legitimating the offspring born of such union during the period referred to above, but it would be void of all subsequent effects. 602. The granting of a sanatio in radice may be a public or an occult act. If it is a public act the sanatio should be applied publicly. If it is an occult act it is to be applied in the tribunal of penance, though no spe- cial formalities are prescribed by law. Should the im- pediment for which an occult sanatio was granted be- come public, a public dispensation must also be ob- tained. An occult sanatio should be procured and ex- ecuted secretly by the confessor. He is to have direct recourse to the Sacred Penitentiaria. His petition should contain full information as to the consent of the parties, namely, whether it was given ab initio and is unrevoked ; whether in the beginning it was denied but supplied subsequently; whether it was given in good or bad faith. The petition must reveal also the causes which actuated the petitioner, as well as the name and the correct address of the confessor. It is generally suggested that the confessor should apply the sanatio in radice in the tribunal of penance after the sacra- mental absolution and before the prayer "Passio Domini." ^* " The form usually suggested runs thus : Ego auctoritate Apostoliea mihi concessa matrimonium a te contractum cum N. in radice eius sano et prolem susceptam legitimam declaro. In nomine Patris, etc. 438 The New Church Law on Matrimony. 603. Sanatio in radice can be conceded only by the Apostolic See."'' The purpose of this canon is not to derogate from the principle which holds that personal juridical rights are communicable/" It is a well-known fact that the Holy See not only may but actually does delegate the power to dispense by means of sanatio in radice. The Sacred Consistorial Congregation decreed that the Bishops of America should enjoy the faculty of dispens- ing from any minor impediment mentioned in canon 1042 and also of granting a sanatio in radice for mar- riages whose invalidity resulted from the presence of an impediment therein mentioned. This faculty is to last for five years from the date of concession." The same faculty authorized the Bishops to dispense for five years even from the impediments of major grade, whether public, or occult, or even multiple, provided they originate from ecclesiastical law (with the excep- tion of the impediments arising from the Order of the Holy Priesthood and from lineal affinity when the mar- riage had been consummated), and provided the peti- tion is sent to the Holy See and urgent necessity for dispensing arises before the answer is received. This last condition {si petitio dispensationis ad 8. Sedem missa sit et urgens necessitas dispensandi supervenerit. pendente recursu) was subsequently suspended for the duration of the war. The present faculties of the Bishops extend over all impedient and diriment im- pediments of ecclesiastical law (excepting the two men- tioned above) and they may also grant a sanatio in radice to validate a marriage whose invalidity was caused by the presence of a diriment impediment '"Cod. Iue. Can., Can. 1141. '' "Potest quis per alium, quod potest f aeere per seipsum." (Reg. LXVIII, B. I., in VI°.) " S. C. Consistorialis, 25 apr., 1918. See, Acta Apostolicae Sedis, vol. X, n. 5, p. 190-192. Validation of Marriage. 439 from which they have power to dispense, whether it be of minor or of major grade.'' In a subsequent decree the same Congregation has granted a concession by virtue of which these faculties are to remain in force for the period of six full months following upon the signing of the peace terms by the nations presently at war/" " Sacra Congregatio Consistorialis, 2 aug., 1918. See Acta Apos- tolicae Sedis, vol. X, n. 9; p. 363 and 364. " 8. C. C, 4 mart., 1919 ; in the Acta Apostolioae Sedis, vol. XI, p. 120; ib., "Monitor* Ecclesiastico," ser. IV, vol. I, p. 106. CHAPTER XIV. About Second Nuptials. (Canon 1142— Canon 1143.) 604. Though chaste widowhood is' more honorable, yet second and further nuptials are valid and licit, the prescription of canon 1069, §2, being observed.^ The clause of the foregoing canon refers to the im- pediment of ligamen of which the new law says: Though the first marriage was null or dissolved for whatever cause, another should not be contracted until the nullity or dissolution of the first is legitimately and beyond all doubt ascertained. This provision makes it clear that successive polygyny or polyandry is per- mitted but only on condition that the first marriage has been legitimately dissolved, either by the death of the first consort or by a declaration of nullity proceeding from the supreme ecclesiastical legislator. 605. The law expressed in this canon conforms to the general law of the Church promulgated by St. Paul.^ Hermas (first or second century) testifies that such was the law of the Church in the early ages of Christianity.^ Similar testimony is proffered by Clem- ent of Alexandria, Origen, Epiphanius and others.* The condemnation hurled by the Council of Nice > Cod. Iue. Can., Can. 1142. ' "But I say to the unmarried, and to the widows : It is good for them if they continue even as I. But if they do not contain themselves, let them marry, for it is better to marry than to be burnt." (I. Cor. VII, 8, 10.) ' Hermas, lib. II, Mandat. IV, n. 4. •Wernz, op. cit., n. 719. 440 About Second Nuptials. 441 against the Montanists and Novatians is another evi- dence we can adduce to corroborate the foregoing con- tention.^ The bitter vituperation set in motioi^ by the ecclesiastical writers of the early centuries against those who entered into second nuptials does not war- rant any further conclusion than that the Church dis- countenanced such a step and that it was generally looked upon with disfavor. 606. The Oriental Church took more drastic meas- ures to suppress the tendency to contract second nup- tials and went so far as to brand them with the stigma of unlawfulness, but not with that of invalidity." What- ever punishments were meted out in the penitential books to those who indulged in successive polygyny or polyandry, fell into desuetude in the time of Gratian,'' Roland ° and Bernardus Papiensis." The legal infamy with which the Roman law branded those widows who entered into second nuptials before at least one year elapsed after the death of their first husband,^" was not generally approved by the Church. The forty-fourth canon of the Council of Paris (829) permits a widow to enter into second nuptials thirty days after her first husband's death, and in the twelfth century all vestige of such a stigma was removed." 607. As regards the nuptial blessing the new law rules : A woman to whom the solemn blessing was once imparted is not permitted to receive it again in the following nuptials." Whether in the new law the second nuptials will re- • Can. VII, Cone. Nicaenum. ' Zhisman, op. cit., p. 435 ; Fbeisen, op. cit., p. 669. ' Diet. Grat., post c. 7, C. XXXI, q. 1. ' Magister Bolandiis, Summa, p. 155. • Summa, p. 194^ "L. 11, §1 sq. D. de his, qui not. inf., Ill, 2; L. 2, Cod. de sec. nupt.. V. 9. "Urban III, c. 4, X, de secundis nuptiis, IV, 21; Innocent III, c. 5, X, tit. cit., IV, 21. '» Cod. Iur. Can., Can. 1143. 442 The New Church Law on Matrimony. ceive the solemn blessing or not will depend on whether the prospective wife received such a blessing before or not. If she was never married, or if at her first mar- riage the blessing was omitted, or if the first marriage was invalid, she is entitled to a solemn blessing on the occasion of her second nuptials. If at her first mar- riage the blessing is given, she cannot receive that blessing at her second marriage. Therefore a man who enters into wedlock with a widow whose first nup- tials were blessed would not have the right to receive the blessing on the ground that this is his first mar- riage.^^ But, on the other hand, a widow whose first nuptials were not blessed would be entitled to have her second nuptials blessed even if the widower whom she marries had received a solemn blessing at his first mar- riage. In the former case the Missa pro Sponso et Sponsa could not be celebrated." In the latter case that Mass would be proper.^^ 608. It must be noted, finally, that the Church does not encourage the second nuptials though they are not branded as invalid or illicit. This conclusion is based on the new law by virtue of which among irregulares ex defectu are classed all persons who may be char- acterized as bigamists, in the sense that they have con- tracted two or more valid marriages successively.^* " Benbdictus XIV, const. "Etsi pastoralis," 26 maii., 1741 ; ^VII, n. 4 ; RiTUALB EOMANUM, tit. VII, c. 1, de Sacramento matrimonii, n. 15 ; S. C. C, Mileten., mense febr., 1590, ad 6; S. E. C, Aquen., 3 mart., 1761, ad 1; deer. gen. 30 iun., 1896, n. VI. " S. E. C, 3 mart., 1761. " Gasparri, op. cit., II. 1042. " Cod. Iur. Can., Can. 984, n. 4. INDEX. References contained in this Index allude to numbers placed at the beginning of paragraphs. Abduction, impediment of, 291- 300; definition and meaning, 291 ; when does it arise, 292 ; its history, 293 ff.; new law, 295 ff.; dispensation, 298; pen- alty against those guilty of, 299 ff. Adoption, impedient impediment of, 185 ff.; diriment impedi- ment of, 388 ff. Adult, persons with regard to doubtful baptism, 95. Adulterine children, 173. Adultery, such as required: to con- stitute the impediment of crime, 304; for permanent sep- aration from community of bed, board and dwelling, 581 ff.; does not dissolve conjugal bond, 546; committed after conver- sion deprives one of the right to Pauline Privilege, 569. Affinity, impediment of, 348-370; reckoning the degrees of, 349; multiplication of, 350; history of the impediment, 351 ff. ; different kinds in the former discipline, 353 ff.; derivative force of the impediment, 355 ff. ; in the Oriental Church, 359; when contracted in infidel- ity not an impediment in mar- riages entered into before the reception of, baptism, 357 ; dis- pensation from the impediment, 360 ff. ; penalty against those who knowingly without dispen- sation contract marriage with their afflnes, 363 ff. ; civil legis- lation, 369; exposure of imped- iment, 365. Age, impediment of, 204 ff.; re- quired for valid marriage, 205; as regards civil legislation, 206; of puberty, 100. Apostasy, cause for separation, 586. Arrogatio, 186. Artificial fecundation does not con- summate marriage, 53, 213. Assistance of a priest at mixed marriages, 197; at any mar- riage in order to be valid, 453 ff. ; at the marriage of a public sinner, 202; at tlie marriage of vag\ 118. Attempted marriage, 59; penalty if before a minister, 270. Authority over matrimonial con- tracts of infidels, 9; over the marriages of baptized persons, 13. B, Banns, proclamation of, 97 ; to be proclaimed by the proper pas- tor, 99; of vagi, 99; of a mixed marriage, not to be pro- claimed, 196; where to be an- nounced, 101; when and how to be announced, 102 ff. ; dis- 443 444 Index. pensation from, 105 ff.; new mode of proclaiming, 107; of mixed marriage, 108. Baptism, the source of the sacra- mental character of marriage, 17; meaning of words: Catholic baptism, 222 fE.; when doubt- ful and correlated to marriage, 232 ff. Baptismal certificate to be pro- cured before marriage, 95. Betrothment, see Espousals. Bishop, see Ordinary. Bond, of marriage, relatively in- dissoluble by natural law, 41 ff. ; absolutely so in Christian marriages, 543 ff.; how dis- solved by Pauline Privilege, 553 ff. C. Care of children imposed on par- ents by natural law, 536. Casus Apostoli, see Pauline Privi- lege. Casus perplexus, when does it arise, 164; who may dispense under the circumstances, 165 ff. Causes justifying : dispensation from the proclamation of banns, 106; marriage of con- science, 62; a dispensation from the impediment of mixed religion, 190; from the impedi- ment of disparity of worship, 245; militating against matri- monial consent, 398 ff.; excus- ing one from the form of mar- riage enforced by the new law, 495 ff. ; justifying a dispensa- tion from interpellation, 567 ff. ; justifying a temporary sep- aration of the consorts, 585 ff. Cautiones, in urgent danger of death, 160, 189 ff.; in mixed marriages, 242 ff. Catholic baptism, meaning of, 222 ; applied to the impediment of disparity of worship, 222 ff. ; to persons bound by the form of marriage promulgated in the new Code, 502 ff. Celibacy, not in conflict with nat- ural law, 19; extolled in the Sacred Scripture, 273. Censure, as an impedient impedi- ment, 203. Ceremonies, of the sacrament of matrimony, 506. Cessation of an impediment, does not in itself validate marriage, renewal of consent necessary, 589; how to renew consent, 590 ff. Children, illegitimate, how to be legitimated, 156; spurious and natural, 173; to whose care to be committed in ease of separa- tion of the consorts, 588 ; legiti- mated by subsequent marriage, 540 ; by sanatio in radice, 598. Christian Doctrine, instruction in, to be given before marriage, 92. Church, to it alone belongs the right to regulate marriages of the baptized, 13; and to intro- duce impediments for the faith- ful, 140 ff.; under certain con- ditions by means of papal dis- pensation, 550; or solemn re- ligious profession, 548, and of Pauline Privilege, 553, it has the power to dissolve marriage contracted in infidelity. Church (parish) is the place for the proclamation of banns, 101 ; for the contracting of marriage, 528 ff. Civil authority: correlated to mat- rimonial contracts, 9; to the civil effects of marriage, 64 ff. ; law on the impediment: of adoption, 185, 186; of age, 206; of impotency, 213; of dispar- ity of worship, 271 ; of con- sanguinity, 346; of affinity, 369. Index. 445 Coercion and fear, militating against consent, 415 ff. Community of bed, board and dwelling pertain only to the in- tegrity of marriage, 8, 580. Componenda, for matrimonial dis- pensation, 179. Computing the degrees of consan- guinity, 327; of affinity, 349. Concubinage, when does it consti- tute an impediment of public propriety, 376. Condition placed in entering into marriage, 430 &.; placed in marriages that the mandams contracts by proxy, 23 ff. Confession before marriage, 120. Confessor's power over impedi- ments in urgent danger of death, 161 ff. ; in casu per- plexo, 166. Confirmation should be received be- fore the sacrament of matri- mony, 95 ff. Consanguinity, impediment of, defi- nition of, 321; various kinds, 322; history of the impediment, 323 ff . ; in the Oriental Church, 325 ff.; mode of computation, 327; multiplication, 328; dia- grams and Genealogical Tree, 328; motives of the impedi- ment, 329; to what extent it is founded on natural law, 330 ff. ; dispensation from the impedi- ment, 336 ff.; causes justify- ing such a dispensation, 341 ; ecclesiastical penalty and ex- posure of the impediment, 343 ff. ; civil legislation on the im- pediment, 346 ff. Conscience, marriage of, 61, 518 ff. ; causes justifying such mar- riage, 62. Consummated marriage, 49, 50, 53. Contract of marriage, 3. Contracts (matrimonial) of unbap- tized persons, 9. Council of Trent, on the sacrament of matrimony, 12; on virginity and celibacy, 19. Crime, impediment of, definition, 301 ; history, of the impediment, 302; as arising from adultery combined with the promise of marriage, 304 ff. ; characteris- tics of the adultery and the promise of marriage such as required to beget this impedi-' ment, 303, 304; as arising from adultery combined with attempt at marriage, 307 ff. ; third phase of the impediment aris- ing from adultery combined with the murder of one's own consort, 308; in this case the murder must have certain char- acteristics, 309 ; controversy whether it is necessary to man- ifest one's matrimonial inten- tion before the murder is com- mitted, 310; last phase of the impediment as it arises from coniugicidium, 311; multiplica- tion of the impediment, 312; the impediment is of ecclesi- astical law, 313; ignorance of the penalty does not free one from incurring the impediment, 315 ff.; dispensation from the impediment, 317 ff. ; penalties incurred, 320. Cumulating, faculty of, 170 ff. Custom cannot introduce a new im- pediment, 144. Danger of death: dispensation from preliminaries to marriage in, 83; from impediments, 151 ff. Death (presumed) of the former consort, how to be established, 217. Defect in supplica or rescript does not invalidate the rescript when 446 Index. there is question of an impedi- ment of minor grade, 176. Degrees of consanguinity, how to be computed, 327; of aifinity, 349. Delegation to witness marriage, 468; assistant priests only may receive general delegation, 469. Derivation of the word "matri- mony," 1. Difference between marriage con- tracts and other contracts, 6. Diriment impediments, 131 ff. Dispensation : from impediments, 146 ff.; correlated with re- scripts, 148 ff. ; from banns, 105 ff. ; from impediments in urgent danger of death, 151; from the form of marriage, 158; from the impediment of consanguin- ity, 336 ff. ; from the impedi- ment of affinity, 360 ff. ; from the impediment of disparity of worship, 242 ff., 189 ff.; from a ratified non-consummated marriage, or on account of the presumed death of the other consort, 175; taxes or compo- nenda for, 178 ff. ; from the impediment of Holy Orders, 281 ; from the impediment of Solemn Religious Profession, 228 ff. ; from the impediment of abduction, 298; from the im- pediment of crime, 318; from the impediment or spiritual re- lationship, 386 ff. ; of legal re- lationship, 395. Disparity of worship, impediment of 218 ff.; history and nature of the impediment, 128 ff. ; per- sons who incur it in the new law, meaning conveyed by the words ' ' Catholic Baptism, ' ' 222 ff.; doubtful baptism, 232 ff . ; dispensation from the im- pediment, 242 ff.; injunctions relative to mixed marriages. 258 ff.; ecclesiastical penalty, 270 ff. Disease contagious, cause for sep- aration, 586. Discretion, want of, militating against matrimonial consent, 399. Domicile and quasi-domicile, 482 ff. E. Ecclesiastical acts, 270. Education of children the duty of parents, 536. Effects of marriage, 28, 531 ff. End of marriage, 29 ff. Engagement, see Espousals. Error, when does it invalidate mar- riage, 402 ff. Espousals, new law on espousals, 70 ; invalid if contracted by persons laboring under an im- pediment, 74; obligations aris- ing from, 76 ff. ; right of the aggrieved espoused party, 81. Essence of the marriage contract, 8. Examination of persons to be mar- ried, 86 ff. Faculty for cumulating, 170 ff. Fear and coercion, when do they invalidate marriage, 415 ff. Fecundation, artificial, does not consummate marriage, 53, 213. Form, of the sacrament of matri- mony, 27; to be observed in the celebration of marriage, 450 ff.; persons bound by the Cath- olic form of marriage, 502; qualifications of the witnesses, the pastor and the Ordinary for valid assistance, 453 ff. ; au- thorization to assist at mar- riage, 468 ff. ; requirements for licit assistance, 478 ff.; circum- stances under which the form of marriage does not oblige. Index. 447 495 ff. ; rights to be observed in the celebration of marriage, 506 ff. ; registration of mar- riage, 513 ff. ; dispensation from the form of marriage in urgent danger of death, 151 ff. Forum, definition of, and dispensa- tion given by the internal forum, 168. Freedom to marry, how to be ascer- tiiined, 85 ff. ;, G. Genealogical Tree, 328. Godfather, godmother, spiritual re- lationship, 382 ; qualifications required on the part of god- parents, 383. Greek Catholics not bound by the form of marriage enforced by the new Code, unless they marry Catholics belonging to the Latin rite, 502 ff. H. Heresy, cause of temporary sepa- ration, 586. Hermaphrodites, 212. Homicide, when does it constitute an impediment, 308. I. Ignorance of Christian Doctrine, when is it an obstacle to mar- riage, 92. Ignorance of nullifying or disquali- fying law does not excuse from incurring an impediment, 316. Illegitimate children, see Children. Impediment: must be revealed by the faithful, 109 ff . ; history of, 124 ff.; definition of, 129; vari- ous kinds of, 129 ff. ; public and occult; 132; of natural or of divine law, 133 ; relative and absolute, 134; cerkiin and doubtful, 135; perpetual and temporary, 136 ; dispensable and non-dispensable, 137; ante- cedent and subsequent 138; correlated with natural law, 140; right to introduce impedi- ments, 141; the Ordinaries may introduce impedient impedi- ments, 142; cannot be intro- duced by custom, 144; can be of minor and of major grade, 145; power of Bishops and priests over matrimonial im- pediments, 151 ff.; that may be dispensed urgente mortis peri- culo, 158 ff . ; by whom dispensed in urgent necessity when all preparations for nuptials have been made, 164 ff.; of consan- guinity and affinity, when a dis- pensation is granted, 176; of simple vows, 184; of adoption, 185; of mixed religion, 187; of unworthiness, 199; of age, 204; of impotency, 207; of ligamen, 214; of disparity o^ worship, 218 ; when does the impediment of disparity of worship cease to bind, 241; of Holy Orders, 272; of solemn Religious Pro- fession, 283 ; of abduction, 291 ; of crime, 301 ; of consanguinity, 321; of afanity, 348; of public propriety, 371; of spiritual re- lationship, 379; of legal rela- tionship, 388. Impotency, impediment of, nature and definition, 207; kinds of impotency, 208; when is it verified, 2ll ; doubtful impo- tency not an obstacle to mar- riage, 212; civil law, 213. Indissolubility of marriage, 41 ff., 543 ff. Information which the faithful are obliged to give in order to re- veal impediments of which they are aware, 109 ff. Injunctions relative to mixed mar- riages, 193 ff. 448 Index. Inquiry to be made to ascertain the free state of the contracting parties, 85 ff. Instructions to be given by the pastor on the new law on mar- riage, 82; to be directed to par- ties about to be married, 119. Interpellations: in the case of Pauline Privilege, 560 ff.; dis- pensation from, 562; how to be made, 563; once made need not be repeated, 564; when made privately, and their validity, 565 ; causes justifying a dispen- sation from them, 566 ff . ; when is the converted party free to contract marriage, 568 ff. Interpreter, marriage through, 22. Irregularity incurred by bigamists, 608. J. Jurisdiction of the Church over marriages, 64; of the state, 9, 64. K. Killing of one's consort constitutes an impediment of crime, 311 ff. Kinds of marriage, 49 ff. Knowledge of the accomplice's married state necessary in order that adultery may become a partial contributory cause to the impediment of crime, 304; of penalty not a necessary requisite for the incurring of an impediment, 316. L. Legitimate marriage, 49, 52; chil- dren, see Children. Letter, marriage by, 22. Ligamen, impediment of, nature and definition of, 214, ff.; when does it cease, 216; decree, how to ascertain the death of the former consort in doubtful cases, 217. M. Mandans, see marriage by proxy, 22. Marriage, see Matrimony. Mass pro Sponso et Sponsa, when may it be said, 525 ff. Material object of marriage, 4. Matrimony: meaning of the word, 1 ; as a mere natural contract, 3; its material object, 4; as a contract and sacrament, 11; proofs that it is a sacrament, 12; contract and sacrament in- separable, 13; by proxy, pro- curator, interpreter and letter, 22; must be regarded as valid imtil the contrary is proved, 45 ff.; ratified, ratified ani con- summated, legimate and puta- tive, 49; putative, 54; presump- tive, 56; clandestine, 57; public, 58; attempted, 59; morganatic, 60; of conscience, 61, 518; as regards its effects, 64 ff. ; in- struction on marriage, 82, 119; of vagi, 118; form of nxar- riage, 450 ff. ; valid assistance at marriage, 453 ff. ; rites of marriage, 506 ff.; registration of marriage, 513 ff.; time of marriage, 524 ff. ; place of mar- riage, 528 ff. ; mixed marriage (ceremonies and place), 530 ff.; effects of marriage, 531 ff.; validation of marriage, 589 ff. Matter of the sacrament of matri- mony, 27. Ministers of the sacrament of mat- rimony, 18. Mixed marriages, ceremonies and place of, 530 ff. Mixed religion, impediment of, na- ture of the impediment, 187 ff . ; dispensation from the impedi- ment, 189 ff. ; causes justify- ing a dispensation, 190; cau- tiones, 191; certainty is re- quired that the cautiones will Index. 449 be complied with, 192; obliga- tion of the Catholic party to procure the conversion of the dissentient consort, 193; the spouses not permitted to pre- sent themselves before a non- Catholic minister, 194; duties of the Ordinaries and the pas- tors as regards mixed mar- riages, 195; banns of mixed marriages and place in which they are to be celebrated, 196; assistance of the pastor at such marriages, 197 ; excommunica- tion if attempted before a non- Catholic minister, 198. Monogyny, 37 ff. Multiplication of the impediment of crime, 312; of consanguinity, 328; of aflSnity, 350; of spir- itual relationship, 386. Murder, when does it constitute an impediment of crime, 308 ff. N. Natural children, see Children. Natural law, with regard to right of marriage, 20; correlated to the unity of the matrimonial bond, 36 ff.; correlated to in- dissolubility, 41 ff.; demands the revelation of impediments, 110; right to interpret it with regard to matrimonial impedi- ments, 140; forbids mixed mar- riages, 188. Nefarious children, 173. Non-Catholics not subject to the Catholic form of marriage, 502 ff.; do not incur the impedi- ment of disparity of worship when they contract marriage with an infidel, 220. Nuptial blessing, when forbidden, 524; when may the Ordinary authorize it in forbidden time, 525 ff.; when may it be given, 607. Nuptials, second, 604 ff.; irregu- larity incurred by persons who contract two or more valid mar- riages successively, 608. Oath, its effects when added to espousals, 79 ; of an adult is to be regarded as a proof of his baptism when no other evidence can be procured, 95. Obligation arising from valid espousals, 76 ff. Obligation of parents with regard to their children, 37, 42, 536. Obreption in the supplica does not invalidate petition when there is question of an impediment of minor grade, 176. Orders, impediment of Holy, defi- nition and nature of the imped- iment, 272; basis of the im- pediment, 273; history, 274 ff.; its existence in the Oriental Church, 274, 275; in the West- ern Church, 277; ordination un- der coercion and fear, 279 ff.; origin of the impediment, and dispensation from it, 281 ; pen- alty against clerics attempting marriage, 282. Ordinary may dispense from banns, 111 ; how is proper Ordinary ac- quired, 112; may introduce a temporary impedient impedi- ment, 142; who is included un- der the term, 157; his faculties in urgenti mortis periculo, 151 ff. ; he may dispense in casu perplexo, 164 ff. ; is not to use his faculty to dispense if the petitioner had recourse to the Holy See, 169; may dispense from impediments if delegated, 146. Orientals with regard to the im- pediment of consanguinity, 325 ff.; of affinity, 359; of Holy 450 Index. Orders, 274; to Catholic form of marriage, 502 ff. Parents, their duties toward their children, 37, 42, 536; their ob- jection to their children's mar- riage, 121. Pastor, conditions under which he may assist at the marriages of vagi, 118 ; his power over the matrimonial impediments in ur- gent danger of death, 161 ff.; his power over the same impedi- ments when all preparations for the nuptials have been made, 453 ff. ; what pastor is to pro- claim the banns of marriage, 97 fE. ; his duty to explain to his flock the new law on matri- mony, 82; his duty to instruct persons about to be married, 119; his obligation to dissuade his parishioners from entering into mixed marriage, 195 ff. ; his assistance at mixed mar- riages, 197; he must make in- quiries to ascertain the free state of the person to be mar- ried, 85 ff.; he may grant a general delegation to his assist- ants to assist validly at all marriages to be contracted within the limits of his parish, 469; how is he to assist at the marriage of a public sinner, 202. Pauline Privilege, nature of, 553 ff. ; meaning of words "Con- tumelia Creatoris," 556 ; when is the marriage contracted in infidelity dissolved by means of such concession, 557; interpel- lations, 560 ff.; dispensation from interpellations, 562; how the interpellations are to be made, 563; once made need not be repeated, 564; private inter- pellations and their validity, 565; causes justifying a dis- pensation from interpellations, 566 ff.; when is the converted party free to contract another marriage, 568 ff. Penalty, ecclesiastical, against per- sons attempting marriage be- fore a minister, 270; against persons contracting marriage with the agreement to educate their children outside the Church, 270; against clerics in major Orders attempting mar- riage, 282; against persons bound by solemn vows attempt- ing marriage, 290; against those guilty of abduction, 299 ff . ; against those guilty of adultery, successive bigamy, homicide, attempt at marriage, 320; against individuals at- tempting to marry consanguine- ous persons, 343 ; or affines, 363; against persons attempt- ing to marry individuals with whom they contracted the im- pediment of public propriety, 378 ; against pastor 's disregard- ing licit assistance at marriage, 493. Persons bound by the Catholic form of marriage, 502 ff. Place of marriage, 528 ff. Polyandry and polygyny forbidden, 36 ff.; both absolutely prohib- ited in the New Testament, 214. Pope, see Roman Pontiff. Porro operation, 207. Power of Bishops and priests over matrimonial impediments, 151 ff. Preliminaries to marriage, 85 ff. Presumption, principle of, in doubt- ful baptism, 238 ff. Presumptive marriage, 56. Primary end of marriage, 29 ff. Principle of presumption regarding doubtful baptism, 238 ff. Index. 451 Privilege of the faith, see Pauline Privilege. Proclamation of banns, 97 ff.; in what parish to be made, 99 ; by whom, 97; where to be made, 101; time regulating the procla- mation of, 103 ; dispensation from, 105 ff. ; causes justifying a dispensation from, 106 ; made by posting the names at the church door, 107; not to be made in case of mixed mar- riages, 108; when to be re- peated, 114; what course to be followed when a doubt arises as to the presence of an im- pediment, 115. Procreation, the primary end of marriage, 32. Procurator, marriage by, 22. Profession, Solemn Beligious, dis- solves the bond of a non-con- summated marriage, 548 ff. ; (solemn), impediment of, na- ture of the impediment, 283; history of the impediment, 284; new law on solemn vow, 285; how a solemn vow may affect marriage, 286; what simple vow constitutes a diri- ment impediment, 287; condi- tions required for a vow in order that it may give rise to a diriment impediment, 288; dis- pensation from the impediment, 289; penalties against those "who attempt a marriage though bound by a solemn vow, 290. Promise of marriage, such as re- quired in order that it may be- come a contributory cause to the impediment of crime, 315. Proxy, marriage by, 22. Puberty, age of, in case of male children 14 years completed, in case of female children 12 years completed, thus correct, 100. Publication of banns, see Procla- mation. Public marriage, 58; sinners, pas- tor's assistance at their mar- riage, 202. Putative marriage, 54. Quasi-domicile, 482 ff. Ratified and consummated mar- riage, meaning of, 49 ff. ; such marriage is absolutely indis- soluble, 543 ff. Registration of marriage, 513; of marriage of conscience, 63. Relationship, see impediment of consanguinity, of affinity, of adoption, of spiritual relation- ship. Religious Profession, see Profes- sion. Renewal of consent, 593 ff. Rescripts, with regard to dispensa- tion, 148 ff. Residence for a month in a place is likened to quasi-domicile in or- dine ad matrimonmm, 487. Requirements for valid assistance at espousals, 70 ff. Revalidation of marriage, see vali- dation. Right acquired by espousals, 81; to establish impediments, civil law, 9, 185, 388; Church law, 140 ff. ; power of the Ordi- naries in this respect, 142 ; to in- terpret natural law with regard to matrimonial impediments, 140; to marriage, 20, 139. Rites to be observed in the celebra- tion of marriage, 506. Roman Pontiff alone may add a claiisula irritans to an impedi- ent impediment introduced by the Ordinary, 142; he alone may abrobate impediments of 452 Index. ecclesiastical law, 143 ; may dis- pense from impediments or dele- gate his power, 146; may dis- pense in non-consummated mar- riages, 550; may grant sanatio in radice, or authorize others to do so, 603. S. Sacrament, matrimony is a, 11 ff.; and contract in matrimony in- separable, 13. Sacrilegious children, 173. Sanatio in radice, 596 ff. ; nature of such sanatio, 597 S. ; condi- tion under which granted, 600 ff. ; when does the marriage to which sanatio is applied become valid, 598; h,ow to validate marriage in which the consent was withheld in the beginning, 601; where and how to be ap- plied, 602; by whom may it be granted, 603. Secondary end of marriage, 33 ff. Separation from community of bed, board and dwelling, per- manent separation on account of adultery, 581 fE.; temporary separation on account of ex- trinsic causes, 585 ff. Simulation, how does it affect mar- riage, 410 ff. Simple vow, see Vows. Sinners, public, assistance at their marriage, 202. Societies forbidden by the Church, impediment of unworthiness, 200 ff. Solemn vow, see Impediment of Profession (solemn). Spurious children, 173. Subreption in suppUca, 176. T. Taxes for dispensation, 178. Time of marriage, 524; forbidden, 524 ff.; for the proclamation of the banns, 102 ff. V. Unity of the marriage bond, 36 ff. Unworthiness, impediment of, on what is it based, 199 ; duty of the pastor to discourage mar- riage with an unworthy person, 200 ; societies condemned by the Church, 200; publicness of sin is the contributory cause toward this impediment, 201; duty of the pastor who is asked to assist at such marriages, 202; persons against whom a censure is ful- minated are also unworthy, 203. Uxoricide, constituting impediment of crime, 311. Vagi, their banns, 99; assistance at their marriages, 118. Valid espousals requirements for, 70 ff. Violence, see Fear. Virginity, not in conflict with nat- ural law, 19. Vow of virginity, impediment of, 181; of perfect chastity, 182; of celibacy, 182; to receive Holy Orders, 183; to embrace the religious state, 183; dis- pensation from private vows, 184. Validation of marriage, 589; when the marriage is invalid for want of consent, 593; on account of the presence of an impediment, 589; when invalid for want of the proper form, 595. W. 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ZiTELLi, De dispensationibus Matrimonialibus. Eomae, 18S7. Universitas Catholica Americae Washingtonii, D. C. S. Facultas Theologica 1918-1919 No. 6 TITULI 459 DEUS LUX MEA TITULI QUOS AD DOCTORATUS GRADUM IN lURE CANONICO Apud Universitatem Catholicam Americae CONSEQUENDUM PUBLICE PROPUGNABIT JOSEPHUS JULIUS PETROVITS SACERDOS DIOECESIS HARRISBURGENSIS SACRAE THEOLOGIAE DOCTOR ET JURIS CANONICI LICENTIATUS HORA X A. M. DIE XXXI. MAII A. D. MCMXIX 461 Tituli. 463 I. De rescriptis (Can. 36— Can. 62). II. De privilegiis (Can. 63 — Can. 79). III. De dispensationibus in genere (Can. 80 — Can. 86). IV. De personis relate ad domicilium et quasi-domi- cilium (Can. 91 — Can. 95). V. De clericorum adscriptione alicui dioecesi (Can. Ill— Can. 117). VI. De electione Episcoporum in Statibus Foederatis Americae Septentrionalis. VII. De potestate ordinaria et delegata (Can. 196 — Can. 209). VIII. De baptismo et de ministro et subiecto baptismi (Can. 737— Can. 754). IX. De significatione verboriim "Persona baptizata in Ecclesia catholica ' ' relate ad impedimentum disparitatis cultus et formam matrimonii. X. De ritibus et caeremoniis baptismi et de patrinis in baptismo adhibitis (Can. 755 — Can. 769). XI. De ministro, subiecto, tempore et loco confirma- tionis et de patrinis in confirmatione adhibitis (Can. 782— Can. 797). XII. De ministro et subiecto sacrae communionis (Can. 845— Can. 866). XIII. De reservatione peccatorum, de subiecto sacra- menti poenitentiae et de loco ad confessiones audiendas (Can. 893— Can. 910). XIV. De ministro, subiecto, ritibus et caeremoniis ex- tremae unctionis (Can. 938 — Can. 947). XV. De iis quae sacrae ordinationi praeire debent (Can. 992— Can. 1001). XVI. De natura matrimonii eiusque divisione (Can. 1012 et Can. 1015). XVII. De finibus matrimonii eiusque essentialibus pro- prietatibus (Can. 1013). XVIII. De competentia et differentia potestatis ecclesi- asticae et civilis in rebus matrimonialibus (Can. 1016). XIX. De sponsalibus (Can. 1017). 464 Tituli. XX. De iis quae matrimonii celebrationi praetermitti debent praesertim de publicationibus matri- monialibus (Can. 1019— Can. 1034). XXI. De impedimentis in genere (Can. 1035 — Can. 1042). XXII. De potestate ordinaria Bpiscoporum et aliorum sacerdotum in urgenti mortis pericnlo et in casibus quando impedimentum detegitur ' ' cum iam omnia sunt parata ad nuptias" (Can. 1043— Can. 1046). XXIII. De dispensationibus matrimonialibus (Can. 1047 —Can. 1057). XXIV. De impedimentis impedientibus votorum simpli- eium et adoptionis (Can. 1058 — Can. 1059). XXV. De impedimentibus mixtae religionis et indigni- tatis (Can. 1060— Can. 1066). XXVI. De impedimento aetatis (Can. 1067). XXVII. De impedimento impotentiae (Can. 1068). XXVIII. De impedimento ligaminis (Can. 1069). XXIX. De impedimento disparitatis cultus (Can. 1070 —Can. 1071). XXX. De impedimentibus Ordinis Sacri et Professionis Religiosae (Can. 1072— Can. 1073). XXXI. De impedimento raptus (Can. 1074). XXXII. De impedimento eriminis (Can. 1075). XXXIII. De impedimento consanguinitatis (Can. 1076). XXXIV. De impedimento affinitatis (Can. 1077). XXXV. De impedimento publicae honestatis (Can. 1078). XXXVI. De impedimento cognationis spiritualis et de im- pedimento dirimenti adoptionis (Can. 1079 — Can. 1080). XXXVII. De consensu matrimoniali (Can. 1081 — Can. 1093). XXXVIII. De forma celebrationis matrimonii (Can. 1094 — Can. 1103). XXXIX. De matrimonio conscientiae (Can. 1104 — Can. 1107). XL. De tempore et loco celebrationis matrimonii Tituli. 465 (Can. 1108—1109). XLI. De matrimonii effectibus (Can. 1110 — Can. 1117). XLII. De dissolutione vinculi (Can. 1118 — Can. 1127). XLIII. De separatione tori, mensae et habitationis ( Can. 1128— Can. 1132). XLIV. De eonvalidatione simplici (Can. 1133 — Can. 1137). XLV. De sanatione in radice (Can. 1138 — Can. 1141). XLVI. De seeundis nuptiis (Can. 1142— Can. 1143). XLVII. De temporibus sacris (Can. 1243— Can. 1254). XLVIII. De custodia et cultu sactissimae Eucharistiae (Can. 1265-1275). XLIX. De sacris concionibus (Can. 1337 — Can. 1348). L. De causis contra sacram ordinationem (Can. 1993— Can. 1998). LI. De modo procedendi in remotione parochornm inamovibilium (Can. 2147 — Can. 2156). LII. De modo procedendi in remotione parochorum amovibilium (Can. 2157 — Can. 2161). LIII. De modo procedendi in translatione parochorum (Can. 2162— Can. 2167). LIV. De modo procedendi contra clericos non resi- dentes (Can. 2168— Can. 2175). LV. De natura delicti eiusqne divisione et imputabil- itate (Can. 2195— Can. 2211). LVI. De poenarum notione, speciebus, interpretatione atque applicatione (Can. 2215 — Can. 2219). LVII. De censuris in genere (Can. 2241 — Can. 2254). LVIII. De excommunicatione (Can. 2257 — Can. 2267). LIX. De interdicto (Can. 2268— Can. 2277). LX. De suspensione (Can. 2278— Can. 2285). Vidit Sacra Factiltas : Edmundus T. Shanahan, S. T. D., Ph. D., J. U. L., p. t., Decanus. Joannes I. Ryan, S. T. D., LL. D., p. t., a Secretis. Vidit Rector Universitatis : 1^ Thomas I. Shahan, S. T. D., J. U. L., LL.D.